PUBLIC  SCHOOLS 


A  LAW  TREATISE 


RIGHTS,  POWERS,  DUTIES  AND  LIABILITIES  OF  SCHOOL 
BOARDS,  OFFICERS  AND  TEACHERS. 

WITH  APPENDIX 

CONTAINING  SYNOPSES  OF  PRINCIPAL  STATUTES  OF  EACH  STATE. 


BY  IRWIN  TAYLOR, 

AUTHOR   OF  PLEADING  AND  PRACTICE,  COLORADO  DIGEST,  ANNOTATED   CODE,  GENERAL 
STATUTES  OF  KANSAS,   TAX   LAWS,   KANSAS  DIGESTS,  ETC.,  ETC. 


^>  0?  TH*: 

[UHIVBI. 


CHICAGO: 

IRWIN  TAYLOR,  PUBLISHER,  13  SOUTH  ASHLAND  AVENUE. 
1893. 


COPYRIGHT,  1893, 
BY  IRWIN  TAYLOR,  CHICAGO,  ILLINOIS, 


7    • 


TABLE  OF  CONTENTS. 


Preface  —  p.  3. 

Appeals  — p.  5,  §§1-4. 

Bonds  — p.  10,  §§5-9. 

Buildings  —  Contract,  Control,  Repair,  Use  —  p.  16,  §§10 
to  28. 

Colored  Schools  —  p.  36,  §§29-33. 

Contracts  —  Attorney,  Notes,  Officer  Interested,  Officer  Lia- 
bility, Power,  Ratification  —  p.  44,  §§34-42. 

Corporation  —  p.  53,  §43. 

Crime  — p.  54,  §44. 

Districts  —  Alteration,  Boundary,  Dissolution,  Library,  Or- 
ganization, Union  —  p.  54,  §§45-73. 

Election  — p.  91,  §74. 

Funds  —  Apportionment,  Appropriation  Bonds,  Constitution, 
Fines,  Interest,  Investing,  Liquor,  Loan,  Officer,  Use  — 
p.  92,  §§75-96. 

Grammar  and  High  Schools  —  p.  113,  §97. 

Judgment — p.  114,  §98. 

Legislature  — p.  116,  §99. 

Mandamus  —  p.  116,  §100. 

Mechanic's  Lien  — p.  116,  §101. 

Meeting  — Notice  — p.  117,  §§102^110. 

Normal  — p.  127,  §111. 

Officer  —  Compensation,  Contract,  District  Election,  Liabil- 
ity, Power,  Qualification,  Tax,  Term,  Treasurer,  Vacan- 
cies—p.  128,  §§112-137. 

Parochial  School  —  Bible,  Sectarian^  Religion  —  p.  157, 
§§138-148. 

Pupil  —  Admission,  Chinese,  Discharge,  Dismissal,  Expulsion, 
Punishment,  Residence,  Tuition  —  p.  171,  §§149-163. 


TABLE    OF    CONTENTS. 


Record  — p.  195,  §§164-166. 
Rules  — p.  197,  §167. 

Site  —  Addition,  Condemnation,  Contract,  Conveyance,  Elec- 
tion, Injunction,  Notice,  Officers,  Place,  Sale,  Tax  Title, 

Trust  — p.  200,  §§168-180. 
Statute— p.  208,  §181. 

Suits— District  Party  — p.  209,  §§182-186. 
Superintendent  —  Public  Instruction,   County,   Schools  —  p. 

214,  §§187-191. 
Supplies  — p.  222,  §§192-195. 
Surety  — p.  226,  §§196-198. 
Tax  — p.  228,  §§199-237. 
Teacher  —  Certificate,    Compensation,    Contract,    Dismissal, 

Discharge,  Institutes,  Liability — p.  262,  §§238-265. 
Term  — p.  296,  §266. 
Text-Books  —  Adoption,    Change,  Free,    German,    Studies, 

Pupil  — p.  296,  §§267-279. 
Title  — p.  312,  §280. 
Town  — p.  313,  §§281-282. 
Treasurer  —  p.  313,  §283. 
Trespass  —  p.  313,  §284. 
Truant  — p.  314,  §§285  —  286. 
Trust  — p.  316,  §287.      . 
Universities  —  Colleges  —  p.  317,  §§288-291. 
Vaccination  —  p.  323,  §292. 
Voters  — p.  323,  §293. 
Warrants  — p.  324,  §§294  -  297. 
Women  —  Officers,  Voters — p.  328,  §§298-299. 
Appendix  — Synopses,  School  Laws  of  the  Different  States 

pp.  331-399. 
Teachers'  Certificates  —  Effect  in  other  States pp.  400- 

404. 
Index  —  pp.  405-411. 


PREFACE. 


In  presenting  a  law  book  on  the  subject  of  Public 
Schools,  I  claim  that  this  is  one  of  the  most  important 
subjects  that  come  under  the  supervision  of  courts, 
and  is  farther  reaching  than  any  other — covering  in 
its  scope,  social,  business,  religious  and  official  rela- 
tions. 

I  have  quoted  largely  on  prominent  subjects  from 
the  leading  cases,  and  it  has  been  a  task  of  pleasure 
to  prepare  the  volume  for  publication,  knowing  that 
while  many  decisions  may  appear  conflicting,  yet  they 
are  presented  in  such  a  manner  that  those  who  use 
this  book  can  readily  distinguish  and  apprehend  the 
law  applicable  to  the  system  in  their  State.  I  trust 
that  Teachers,  School  Officers  and  the  Bar  will  appre- 
ciate the  effort  to  unravel  and  present  in  a  tangible 
form  the  law  of  the  land,  taken  from  nearly  5,000 
cases  in  the  courts. 

IRWIN  TAYLOR. 

CHICAGO,  ILLINOIS. 
1893- 


PUBLIC   SCHOOL   LAW. 


§  1.  Appeals. — Ordinarily  an  appeal  does  not  lie,  the  sole 
purpose  of  which  is  to  determine  the  validity  of  a  claim  against 
the  district,  and  the  right  of  appeal  is  confined  to  the  party 
affected  by  the  decision.  It  is  generally  an  adequate  remedy 
from  the  exercise  of  discretionary  powers  imposed  on  an  officer, 
but  often  where  the  obligation  on  the  officer  is  mandatory  the 
courts  of  law  give  speedier  relief  by  the  writ  of  mandamus. 
"  Where  the  right  of  appeal  is  given,  and  the  record  shows  that 
this  right  was  attempted  to  be  exercised,  that  the  appellate  tri- 
bunal took  jurisdiction  of  the  matter,  that  the  parties  interested 
appeared  before  such  tribunal,  that  no  objection  was  made  to 
its  jurisdiction  of  the  appeal,  the  regularity  of  the  steps  taken 
to  perfect  such  appeal  will,  in  any  collateral  inquiry,  be  pre- 
sumed."1 Under  Ind.  Law  of  1855  an  appeal  would  lie  to  the 
state  superintendent  from  action  of  trustees  on  location  of 
school-house  ;2  and  under  law  of  1861,  if  trustee  refused  to 
locate,  appeal  would  be  to  examiner,  and  trustee  would  be 
compelled  to  locate  site  by  mandamus.3  In  R.  I.  the  school 
commissioner  cannot  reverse  decision  of  school  committee  of 
town  on  location  of  site,  but  appeal  is  confined  to  redress  of 
grievances  violating  rights,*  and  there  is  no  appeal  in  a  dispute 
between  tax  officers  as  to  payments  of  moneys.5  The  decision 
of  the  supreme  court  judge  on  appeal  from  school  commission- 


1  Bd.  Ed.  v.  Campbell,  17  Kas.  541. 
«S'ate  v.  Custer,  11  Ind.  210. 
*  Trager  v.  State,  21  Ind.  317. 


*  Gardner's  Appeal,  4  R.  I.  602. 
6  Appeal  of  James,  5  R.  I.  602. 


PUBLIC   SCHOOL   LAW. 


ers  is  final,1  and  the  jurisdiction  on  appeal  is  comprehensive*  in 
its  character,  and  settles  many  controversies  and  disputes.  In 
Md.  the  question  decided  on  appeal  is  considered  as  res  adjvdi- 
cata*  The  remedy  by  appeal  is  one  more  suited  to  settle  the 
questions  there  involved,  and  often  gives  more  satisfactory, 
cheaper  and  speedier  relief.3  Under  N.  J.  L.  28,  all  appeals  must 
be  to  the  county  superintendent/  In  Wis.  the  state  superin- 
tendent has  appellate  power  over  the  decision  of  town  boards 
on  division  of  districts,  and  he  may  make  his  own  rules,  requir- 
ing evidence  to  be  in  form  of  affidavits,  and  briefs  to  be  filed 
without  oral  argument ; 5  and  when  not  required  by  statute,  it 
is  not  always  necessary  that  the  board  or  officer  hearing  matters 
in  dispute  should  require  the  witness  to  be  sworn  ;6  and  in  the 
delicate  questions  of  teachers'  fitness,  it  seems  best  sometimes 
that  it  is  advisable  not  to  pursue  the  same  strictness  required  in 
court  as  to  evidence.7  The  county  superintendent  in  Ind.  can- 
not compel  the  building  of  a  school-house  on  a  site  when  the 
land  does  not  belong  to  a  township,8  and  no  appeal  will  lie  to 
the  superintendent  from  action  of  trustee  making  contracts  or 
dismissing  teacher  in  a  city  or  town,9  but  appeals  should  ex- 
clusively relate  to  school  matters,  and  in  certain  cases  the  deci- 
sion of  the  superintendent  is  final  ;10  and  when  the  school  law 
is  doubtful,  the  opinions  of  the  officials  having  power  to  pass 
on  school  questions  is  of  great  weight,11  and  the  decisions  of 
the  state  superintendent  are  entitled  to  great  weight.12  In  fact, 
the  decision  by  the  tribunals  having  jurisdiction  are  always 
prima  facie  proper,  and  must  be  overthrown  by  the  appellant. 


i  Smith's  Appeal,  4  R.  I.  590. 

8  Wiley  v.  Sch.  Comm'rs,  51  Md.  401. 

'Wiley  v.  Comm'rs,  51  Md.  406;  Appeal  of 

Cottrell,  10  R.  I.  618. 

*  State  v.  Gloucester  City,  45  N.  J.  L.  100. 
estate  v.  Whitford,  54  Wis.  150. 
•People  v.  Bd.  Ed.,  3  Hun  (N.  Y. ),  177. 


» People  v.  Bd.  Ed.,  3  Hun  (N.  Y. ),  177. 
8Koontz  v.  State,  44  Ind.  323  :  State  v.  Me- 

whinney,  67  Ind.  397. 
"Crawfordsville  v.  Hayes,  48  Ind.  206. 
10Fogle  v.  Gregg,  26  Ind.  345. 

11  Appeal  of  Cottrell,  10  R.  I.  615. 

12  State  t .  Burton,  45  Wis.  150. 


APPEAL. 


§  2.  Appeal. — In  N.  Y.  the  county  judge  under  the  act  of 
1864  can  only  review  cases  arising  under  §  8,  and  cannot  review 
^efusal  of  a  district  to  vote  a  tax  to  reimburse  trustee  for  costs 
in  endeavoring  to  recover  a  penalty  imposed  under  §  14  of  that 
act,1  and  the  power  of  the  board  of  education  to  hear  appeals  in 
removal  of  teacher  by  trustees  is  discretionary,  and  the  supreme 
court  cannot  reinstate.2  When  teacher's  certificate  is  annulled 
and  he  appeals  to  the  state  superintendent,  his  decision  is  final,3 
and  under  act  of  1864  the  manner  of  investigating  the  appeal 
is  left  to  the  discretion  of  the  board  of  education.*  In  Mich,  an 
appeal  from  the  action  of  inspector  to  the  town  board  on  ar- 
rangement of  districts,  is  a  waiver  of  the  questions  requiring 
judicial  review.5  In  Cal.  certiorari  was  refused  to  review  the 
action  of  board  of  education  in  adopting  text-books,  it  being 
held  that  the  adoption  was  legislative  and  not  judicial.6  On 
reviewing  the  decision  of  state  superintendent  on  appeal,  the 
proceedings  by  certiorari  only  go  to  the  extent  of  ascertaining 
whether  the  officer  having  jurisdiction  has  acted  according  to 
the  law ;  errors  and  irregularities  will  be  corrected,7  but  the 
writ  will  not  warrant  reviewing  questions  of  fact,  where  there 
is  conflict  of  evidence  or  judgment  on  the  merits.8 

§  3.  Appeal. — It  was  held  that  where  appeal  was  given,  that 
precluded  the  right  to  apply  for  mandamus,9  and  an  appeal  re- 
specting location  of  school-house  does  not  give  the  president  of 
a  district  power  to  employ  counsel  at  the  expense  of  the  dis- 
trict ;  such  an  appeal  is  not  a  suit.10  Where  pupil  is  expelled, 
the  party  is  not  relegated  to  his  right  of  appeal  to  county  super- 


i  People  v.  Hatch,  60  Barb.  (N.  Y. ),  228. 
a  People  v.  Bd.  Ed.,  3  Hun  (N.  Y. ),  178. 
a  People  v.  Collins,  34  How.  (N.  Y. ),  336;  11 

Wend.  90. 

*  People  v.  Bd.  Ed.,  3  Hun  (N.  Y.),177. 
fifirody  v.  Tp.  Bd.,  32  Mich.  272. 


« People  v.  Oakland  Bd.,  54  Cal.  375. 

7  Milwaukee  Iron  Co.  v.  Schubee,  Clerk,  23 

Wis.  444;  Brody  v.  Tp.  Bd.,  32  Mich.  272. 
«State  v.  Whitford,  54  Wis.  154. 
9  Marshall  v.  Sloan,  35  Iowa,  445. 
^Templin  v.  Dist.  Tp.,  46  Iowa,  411. 


PUBLIC   SCHOOL   LAW. 


intendent,  but  he  may  maintain  action  of  mandamus,1  and  no 
pupil  can  be  suspended  except  as  a  punishment  for  breach  of 
discipline  or  an  offense  against  good  morals.2  Where  a  teacher 
was  wrongfully  discharged  for  incompetency,  it  was  held  the 
remedy  was  appeal,  and  that  he  could  not  maintain  an  action  on 
his  contract.3  The  refusal  of  an  annual  meeting  to  act  on  a 
proposed  change  of  boundary  cannot  stop  an  appeal,*  and  on 
appeal  from  change  of  boundary-line  the  commissioner  must 
confine  himself  to  the  question  whether  the  change  proposed  at 
said  election  shall  be  made.6  In  Mich,  the  approval  of  the  ap- 
peal bond  is  essential  to  the  appeal,6  and  the  township  board 
there  will  entertain  appeal  on  apportionment  of  debts  on  di- 
vision of  a  district.7  On  selection  of  site  by  trustees,  one-third 
of  the  electors  may  appeal  in  Ky.  to  county  superintendent, 
whose  decision  is  final,8  and  his  decision  cannot  be  disturbed 
unless  it  is  shown  he  acted  on  improper  motives.9  The  removal 
of  an  assessor  by  the  township  board  is  re  viewable  on  certiorari,10 
but  its  proceedings  can  only  be  reviewed  in  courts  of  law  on 
questions  of  law,11  and  its  action  in  removing  a  director  is  final 
unless  speedily  brought  up  for  review.12 

§4.  Appeal. — It  was  held  in  Knight  v.  Woods  (Ind.  Sup.), 
28  N.  E.  306:  "Under  Eev.  St.  Ind.  1881,  §4537,  providing 
that  appeals  shall  be  allowed  from  the  decisions  of  the  township 
trustees  relative  to  school  matters  to  the  county  superintendents, 
and  their  decision  of  all  local  questions  relating  to  the  establish- 
ment of  schools  and  the  location  of  school-houses,  etc.,  shall  be 
final,  the  decision  of  the  county  superintendent  prohibiting  the 


1  Clark  v.  Bd.  Dir.,  24  Iowa,  266 ;  Smith  v.  Ind. 

Diet.,  40  Iowa,  518;  Dove  v.  Same,  41  Iowa. 
689;  Perkins  v.  Dirs.,  56  Towa,  476. 

2  Perkins  v.  Dirs.,  56  Iowa,  476. 
SKirkpatrick  v.  Iiid.  Diet.,  53  Iowa,  585. 
<^5Mo.  156. 

«85  Mo.  156;  89  Mo.  23;  94  Mo.  612. 


6  Clement  v.  Everest,  29  Mich.  19. 

7  Sch.  Dist.  v.  Wilcox,  48  Mich.  404 

8  Stiles  v.  Beall,  11  Ky.  L.  R.  486. 
9Brinsmore  v.  Cottingham,  12  Ky  L  R  720 

WMerrick  v.  Tp.  Bd.,  41  Mich.  630 

11  Tp.  Bd.  v.  Holiham,  46  Mich.  127. 

12  Geddes  v.  Tp.,  46  Mich.  316. 


APPEAL.  9 


-erection  of  a  school-house  on  a  location  selected  by  the  trustee 
is  within  his  jurisdiction,  and  is  final  and  binding  on  the  trustee  ; 
.and  it  is  immaterial  whether  the  selection  has  been  made  by  the 
trustee  on  his  own  motion,  or  by  proceedings  instituted  by  the 
voters.  .  .  .  It  is  immaterial  at  what  time  the  superintend- 
ent's decision  in  such  case  is  entered  on  his  record." 

"By  §  4537,  Rev.  St.  Ind.  1881,  appeals  lie  in  matters  of  this 
character  from  the  decision  of  the  township  trustee  to  the  county 
superintendent,  and  the  decision  of  the  superintendent  is  made 
final.  In  so  far  as  the  decision  of  the  county  superintendent 
related  to  the  condemning  and  prohibiting  the  erection  of  the 
school-house  on  the  site  designated  by  the  trustee,  it  was  within 
his  jurisdiction,  and  was  valid  and  binding  upon  the  trustee,  and 
took  from  the  trustee  all  authority  to  build  a  school-house  on 
that  site.  The  finding  of  facts  shows  that  this  decision  was 
made  upon  the  29th  day  of  October,  1889,  and  that  the  trustee 
had  full  knowledge  of  the  decision  when  he  let  the  contract  to 
Williams ;  though  it  appears  that  such  portion  of  the  decision 
was  not  entered  on  the  superintendent's  record  until  after  Nov. 
5th.  The  decision  was  binding,  though  not  entered  until  after- 
wards. (Tufts  v.  State,  119  Ind.  232.) 

"It  is  contended  by  counsel  for  appellant  that  the  duty  of 
building  and  providing  proper  school-houses  is  enjoined  on  the 
trustee  by  §4444,  Kev.  St.  1881;  that  it  is  exclusively  within 
the  discretion  of  the  trustee,  and  cannot  be  affected  by  an  ap- 
peal to  the  county  superintendent ;  that  the  right  of  appeal  lies 
only  when  proceedings  are  instituted  by  the  voters  of  the  school 
district,  as  provided  by  §4499,  Rev.  St.  1881 ;  and  that  in  no 
event  can  the  sound  discretion  of  the  trustee  be  controlled  as 
•declared  in  the  proviso  to  §  4499,  supra.  The  proviso  appended 


10  PUBLIC   SCHOOL   LAW. 

to  §  4499,  supra,  relates  to  the  action  taken  by  the  voters  in  re- 
lation to  repairs,  removing  or  erecting  school-houses,  and  costs 
thereof,  and  provides  that  the  action  taken  by  the  voters  shall 
not  be  conclusive,  and  prevent  the  trustee  from  exercising  a, 
sound  discretion  ;  while  §  4537,  supra,  gives  the  right  of  appeal 
in  such  matters  to  the  county  superintendent,  and  makes  his  de- 
cision final.  There  is  no  inconsistency  in  these  sections  of  the 
statute.  The  trustee  first  determines  in  regard  to  the  loca- 
tion, building,  or  removing  of  school-houses,  and  from  his  de- 
cision there  is  an  appeal  to  the  county  superintendent,  and  his- 
decision  is  made  final.  The  decision  of  the  superintendent  in 
this  case  went  beyond  his  power  in  ordering  the  school-house 
erected  on  another  site  not  owned  by  the  township,  and  that 
portion  of  his  decision  is  probably  void ;  but  that  question  is 
not  involved  in  this  case. 

"It  is  further  contended  that  the  appeal  was  not  taken  from 
the  trustee  within  the  proper  time,  but  it  is  not  shown  by  the 
finding  of  facts  the  date  when  the  trustee  made  his  decision. 
No  entry  of  it  was  made  of  record,  and  the  voters  of  the  dis- 
trict and  patrons  of  the  school  were  in  no  way  notified  of  his 
having  made  it.  He  paid  for  the  land  Oct.  1st,  and  afterwards 
gave  notice  that  he  would  let  a  contract  for  the  building  of  a. 
school-house.  When  those  steps  were  taken,  the  appellees  took 
immediate  steps  to  preserve  their  rights.  The  trustee  granted 
the  appeal,  and  appeared  and  submitted  the  question  to  the 
county  superintendent  for  decision,  and  by  such  decision  he 
was  bound.  The  judgment  is  affirmed,  with  costs." 

§  5.  Bonds. — In  an  election,  "the"  omitted  from  the  words 
"for  the  bonds"  on  the  ballot  does  not  invalidate  the  election,1 

i  State  v.  Metzger,  26  Kas.  395. 


BONDS. 


11 


and  mere  irregularities  will  not  invalidate.1  A  vote  was  re- 
quired by  a  majority  of  all  the  inhabitants  of  a  district  entitled 
to  vote ;  it  was  held  that  a  vote  in  favor  of  bonds  by  a  majority 
of  those  voting  was  sufficient,  though  this  was  less  than  half  the 
voters  at  that  meeting;2  but  it  was  held,  where  bonds  may  be 
voted  for  at  special  or  at  regular  city  election,  and  must  have  a 
majority  of  votes  polled,  if  voted  for  at  a  regular  city  election 
all  the  votes  cast  at  such  election  for  any  officer  must  be  con- 
sidered to  determine  the  issue  of  the  bonds  ;3  and  where  bonds 
were  voted  and  sold,  and  proceeds  used  by  district,  on  petition 
to  compel  the  officers  of  the  district  to  report  the  amount  of 
debt,  the  court  will  not  investigate  the  regularity  of  the  election 
when  the  same  was  held  in  good  faith  by  bona  fide  residents  of 
the  district.*  The  successors  of  a  school  district,  sued  on  a  bond 
given  by  former  district,  are  not  estopped  from  making  defense 
of  non-incorporation  of  former  and  ultra  vires.5  The  right  to- 
recover  on  refunding  bonds  cannot  be  defeated  because  a  part 
of  the  proceeds  of  their  sale  was  misapplied  ;6  but  where  a  board 
issued  to  one  of  its  members  a  bond  for  an  unauthorized  pur- 
pose, a  person  who  received  the  bond  from  the  payee,  knowing 
that  he  was  a  member,  could  not  recover  on  the  bond  ;7  but 
bonds  issued  under  a  law  for  a  proper  purpose  are  valid  in  the 
hands  of  innocent  holders  for  value,  notwithstanding  the  uses 
for  which  they  were  intended  have  been  prevented.8  No  au- 
thority is  given  school  directors  to  issue  bonds  and  place  them 
on  the  market  for  anything  less  than  their  par  value.  If  they 


i State  v.  Ellwood,  12  Win.  552;  State  v.  Ca- 
vere,  22  Iowa,  343;  Cat  tell  v.  Lowry,  45 
Iowa,  478:  Clark  v.  Robinson,  88  111.  498; 
Kirk  v.  Rhoads,  46  Cal.  398. 

« Smith  v.  Proctor,  N.  Y.  App.,  29  N.  E.  312; 
6  N.  Y.  S.  212. 


» State  v.  Benton  (Neb. )  45 N.  W.  794. 
^State  v.  Adams  Co.  Sch.  Dist.,  13  Neb.  82. 
6  Dartmouth  etc.  v.  Sch.  Dist.,  6  Dak.  255. 
8  Cummins  v.  Dist.  Tp.,  42  F.  644. 
'  Hewitt  v.Norm.  Sch.  Dist.  Bd.  etc.,  94  111.  528. 
8  Sherlock  v.  Village  Wiunetka,  68  111.  531. 


12 


PUBLIC   SCHOOL   LAW. 


•do,  they  are  liable  in  111.  for  any  loss  the  school  fund  may  sus- 
tain.1 

§  6.  Bonds. — 111.  Rev.  St.  1874,  p.  47,  conferring  upon  school 
directors  the  power  to  give  bonds  for  money  borrowed,  enlarges 
the  power  they  would  otherwise  have  in  connection  with  the 
power  to  borrow  money.2  The  right  of  the  secretary  of  state 
•and  auditor  of  public  accounts,  in  La.,  to  claim  possession  of 
the  assets  of  the  free-school  fund,  is  not  affected  by  the  pre- 
scription of  three  years.3  Payment  of  interest  does  not  estop 
district  from  repudiating  where  it  is  not  shown  that  the  district 
officers  and  people  had  knowledge.4  In  action  against  direct- 
ors in  111.,  on  a  note,  it  must  be  alleged  that  the  indebtedness 
was  incurred  for  a  purpose  authorized  by  statute.6  The  Neb. 
statute  that  the  submission  of  bonds  to  vote  must  also  include  a 
proposition  to  levy  tax  to  pay  interest  on  same,  does  not  apply 
to  act  of  March  31,  1887.6  Bonds  issued  under  a  vote  not 
authorized  by  law  are  not  valid  even  when  held  by  innocent 
purchaser,7  but  authority  to  issue  a  certain  amount  does  not 
invalidate  the  issue  of  a  lesser  amount  or  levy  of  tax  at  lesser 
rate.8 

§  7.  Bonds. — In  an  action  against  a  district  on  refunding 
bonds,  the  burden  is  on  defendant  to  show  that  at  the  date  of 
the  original  issuance  the  outstanding  indebtedness  of  the  district 
exceeded  its  constitutional  limitation,9  but  the  refunding  of  an 
outstanding  valid  bonded  indebtedness  is  not  the  creation  of  a 
debt,  within  the  inhibition  of  Const.  Iowa,  art.  11,  p.  3,  provid- 
ing that  "no  county  shall  be  indebted  in  any  manner  exceeding 


1  Adams  v.  State,  82  111.  132 

2  Folsom  v.  Sch.  Dirs.,  91  111.  402. 

8  San.  M.  Co.  v.  Bd.  of  Liquidation,  31  La. 

An.  175. 
^Ashuelot  Bk.  v.  Sch.  Dist.,  41  F.  514. 


6  Sch.  Dist.  v.  Sippy,  54  111.  287. 
estate  v.  Benton  (  Neb  )  45  N.  W.  794. 

7  Ashuelot  Bk.  v.  Sch.  Diet.,  41  F.  514. 

8  Rogers  v.  Trs.,  ( Ky. )  13  8.  W.  587. 
•  Cummins  v.  Dist.  Tp.,  42  F.  644. 


BONDS.  13: 


five  per  centum  on  the  value  of  the  taxable  property."1  An 
act  authorizing  trustees  of  district  to  hold  an  election,  subscribe 
stock,  and  issue  bonds  in  aid  of  a  railroad,  is  unconstitutional,2 
and  the  act  which  abolished  the  free-school  fund,  and  ordered 
the  bonds  composing  that  fund  to  be  sold,  is  unconstitutional  r 
and  no  title  is  acquired  at  a  sale  made  under  said  act.3  In  Kas. 
a  school  district  irregularly  created  and  organized  may  issue 
bonds  that  will  be  binding  on  that  territory,*  so  a  school  district 
de  facto,  but  not  de  jure,  may  issue  bonds;  its  acts  bind  itself, 
third  persons,  and  its  successor,*  and  power  to  borrow  money 
implies  power  to  issue  bonds  therefor  under  Neb.  statutes.5 

§  8.  Bonds. — Under  1st  Ind.  Kev.  St.  1876,  p.  343,  where- 
trustees  of  incorporated  town  have  filed  a  verified  report  show- 
ing contract  to  purchase  land  on  which  to  erect  building,  and 
showing  amount  of  debt  and  cost  of  building,  and  asking  the- 
issuance  of  bonds,  the  board  may  authorize  sale  of  the  city 
bonds  not  exceeding  limit  specified  in  the  first  section  of  the 
act  ;6  but  where  bonds  were  issued  to  purchase  a  site  and  erect 
a  building,  and  the  bonds  recited  on  their  face  that  they  were 
issued  in  exchange  for  a  school-house  and  site,  it  was  held  that 
the  issue  of  bonds  for  that  purpose  was  not  authorized  by  stat- 
ute, and  that  they  were  not  valid.7  The  official  certificate  of 
call  for  bond  election  to  purchase  a  site  and  build  a  school- 
house,  and  of  the  posting  of  notices,  and  result  and  issuance  of 
the  bonds  purporting  to  be  by  officers  of  the  district,  and  of  the 
election  and  registration  of  the  bonds,  are  evidence  of  corporate 
existence  of  the  school  district.8  The  selection  of  an  ineligible 
site,  or  the  fact  that  a  former  election  had  resulted  against  their 


1  Cummins  v.  Diet.  Tp.,  42  F.  644. 

2  Trustees  of  School  v.  People,  63  111.  299. 

3  State  v.  Bd.  of  Liquidators,  29  La.  An.  77. 

4  Sch.  Diet.  v.  State,  29  Kas.  57. 

estate  v.  Adams  Co.  Sch.  Dist.,  13  Neb.  78. 


e  Williams  v.  Albion,  58  Ind.  329. 

^State  v.  Scb.  Dist.,  16  Neb.  182;  State  v.  Bd.. 

Co.  Comm'rs,  (Neb.)  48  N.  W.  146. 
estate  v.  Sch.  Dist.,  ^eb. )  33  N.  W.  2C6. 


PUBLIC   SCHOOL    LAW. 


issue,  does  not  invalidate  the  issue  of  bonds  at  a  later  election.1 
The  St.  Joseph  (Mo.)  board  of  public  schools  had  power  to  is- 
sue bonds  in  1868  and  1871  to  build  school-houses,  and  to  re- 
fund same.2  The  leasing  of  a  public  school  building  for  private 
school  unauthorized  by  law,  will  not  render  the  building  bonds 
invalid.3  Boards  of  education  in  cities  of  first  class  under  law 
of  1879,  in  Kas.,  had  no  authority  to  issue  bonds  to  raise  funds 
to  purchase  a  school-site,  or  to  erect  buildings.* 

§  9.  Bonds.  —  In  the  case  of  GMs  v.  Sch.  D.  (Mich.),  50 
N.W.  294,  it  was  decided:  "Under  How.  St.  Mich.,  §§5104, 
5105,  which  authorize  the  school-district  board  to  issue  bonds 
only  in  specified  instances  and  on  a  vote  of  the  school  district, 
the  question  whether  the  proceedings  to  vote  bonds  are  such  as 
will  authorize  the  board  to  issue  them  is  one  of  fact,  to  be  de- 
termined by  the  board,  and  hence  a  recital  in  a  bond,  signed  by 
two  of  the  three  members  of  the  board,  that  the  bond  is  issued 
pursuant  to  a  vote  of  the  qualified  electors  at  a  special  school 
meeting,  held  at  a  designated  date  and  place  in  accordance 
with  law,  is  sufficient  evidence  of  the  legality  of  the  issue  to 
protect  a  bona  fide  purchaser,  though  the  records  of  the  board 
do  not  show  its  authority  to  issue  the  bond. 

"Purchasers  of  municipal  bonds  are  bound  to  know  the  ex- 
tent and  limitations  upon  the  authority  of  the  corporation  to 
issue  the  bonds.  They  are  bound,  in  other  words,  to  know  the 
law  under  which  the  authority  is  exercised.  Purchasers  of  such 
securities  have  a  right  to  rely  upon  all  facts  asserted  or  appear- 
ing upon  the  face  of  the  bonds,  made  by  any  person  or  body 
authorized  by  law  to  pass  upon  and  determine  the  facts.  In 
purchasing  this  bond  the  purchaser  was  bound  to  know  that 


1  Taylor  v.  Brownfield,  41  Iowa,  264. 

2  St.  Joseph  Sch.  Bd.  v.  Gaylord,  86  Mo.  401. 


3  Sherlock  v.  Winnetka,  68  111.  530. 
*Bd.  Ed.  v.  State,  26  Kas.  44. 


BONDS.  15 


school  districts  have  no  authority  to  issue  bonds  except  for  the 
purposes  specified  in  the  statute,  and  that  their  authority  is  lim- 
ited by  the  number  of  scholars  between  five  and  twenty  years 
then  residing  in  the  district ;  that  there  must  be  a  two-thirds 
vote  of  the  qualified  electors  in  favor  of  their  issue.  The  pur- 
chaser is  chargeable  with  knowledge  of  the  prerequisites  of  a 
legal  special  meeting,  and  of  the  provisions  for  a  board  of  in- 
spectors, and  their  duties,  and  of  the  requirement  that  the  vote 
shall  be  by  ballot.  The  recitals  in  this  bond  are  made  by  the 
director  and  moderator,  who  compose  a  majority  of  the  school 
board.  Neither  the  school  board  nor  the  moderator  and  director 
are  authorized  to  issue  the  bonds  unless  voted  by  the  district  at 
a  lawful  meeting;  and  under  §  5104,  before  the  board  can  act 
they  have  a  function  to  perform,  in  its  nature  somewhat  judicial, 
and  that  is  as  to  their  own  authority  to  issue  the  bonds.  The 
statute  limits  that  authority  to  bonds  voted  by  the  school  dis- 
trict, and  consequently  the  question  whether  the  proceedings  to 
vote  such  bonds  are  such  as  will  authorize  the  board  to  issue 
them  must  be  passed  upon  by  the  board.  A  purchaser  of  the 
bonds,  therefore,  need  look  no  farther  back  than  the  face  of  the 
bonds  for  the  facts  which  show  a  compliance  with  the  law.  We 
think  the  assertion  appearing  upon  the  face  of  the  bond  is  suffi- 
cient evidence  to  an  innocent  purchaser  that  the  board  ordered 
and  directed  the  bond  to  be  issued.  The  officers  signing  the 
bond  are  two  of  the  three  officers  who  constitute  the  board,  and 
the  director  is  the  officer  whom  the  statute  requires  should  make 
a  record  of  the  proceedings  of  all  district  meetings,  and  the  or- 
ders, resolutions  and  other  proceedings  of  the  board.  It  mat- 
ters not,  therefore,  that  the  records  kept  by  the  board  do  not 
show  the  order  of  the  board  to  execute  the  bonds.  The  title  of 


PUBLIC   SCHOOL  LAW. 


a  ~bona  fide  holder  of  the  bond  cannot  be  defeated  by  a  neglect 
to  enter  the  order  in  cases  where  the  face  of  the  bond  upon 
which  he  has  a  right  to  rely  recites  the  fact  that  such  order  was- 
made. 

"  This  case  is  not  controlled  by  Spitzger  v.  Village  of  Blanch- 
ard,  82  Mich.  234.  In  that  case  there  was  a  limitation  upon 
the  authority  to  borrow  money  in  excess  of  a  certain  percentage 
upon  the  taxable  property.  In  that  case  the  law  did  not  desig- 
nate any  body  or  board  to  pass  upon  the  facts,  and  only  per- 
mitted the  bonds  to  be  issued  for  'loans  lawfully  made.'  The 
bonds  could  only  be  issued  upon  the  vote  of  the  electors,  and 
the  bonds  did  not  recite  that  such  a  vote  was  taken.  In  that 
case  we  said  that  'where  there  is  a  total  want  of  power,  under 
the  law,  in  the  officers  or  board  who  issue  the  bonds,  the  bonds 
will  be  void  in  the  hands  of  innocent  holders,  the  distinction 
being  between  questions  of  fact  and  questions  of  law.  If  it  is 
a  question  of  fact,  and  the  board  or  officers  are  authorized  by 
law  to  determine  the  fact,  then  their  determination  is  final  and 
conclusive  ;  and  although  it  may  be  contrary  to  the  fact,  yet  if 
recited  in  the  bond  that  the  necessary  and  proper  steps  required 
by  law  to  be  taken  had  been  taken,  then  the  municipality  is  es- 
topped from  denying  that  they  were  taken.'" 

§  10.  Building  contract.  —  Where  a  school  district  votes  to 
purchase  a  building  for  a  school-house,  and  raises  funds,  and  a 
committee  of  the  district  make  a  bargain  in  behalf  of  the  district 
for  the  purchase  of  the  building  at  an  agreed  price,  if  the  district 
afterwards  uses  the  building  for  a  school-house,  in  an  action  by 
the  owner  to  recover  the  price  the  defendant  cannot  deny  the 
authority  of  the  committee,  and  is  bound,  in  the  absence  of 
fraud  or  mistake,  to  pay  the  price  agreed  on  by  the  committee, 


BUILDING   CONTRACT.  17 

although  they  acted  in  making  the  purchase  without  any  legal 
antecedent  authority.1  Where  a  school  district  contracted  witli 
a  builder  to  erect  a  school-house  for  a  certain  sum,  with  liberty 
to  build  a  public  hall  over  the  same,  as  the  builder's  property, 
the  district  to  have  the  use  of  the  hall  free  of  charge,  for  meet- 
ings and  for  examinations  of  the  schools,  etc.,  and  the  house 
was  so  built,  the  district  did  not  exceed  its  authority,  and  a  tax 
therefor  was  legal.2  Where  a  tax  was  raised  to  build  a  school- 
house,  and  a  committee  was  appointed  for  this  purpose,  but, 
owing  to  some  difficulty  as  \f>  the  land  for  the  site  the  com- 
mittee did  not  proceed,  and  a  second  meeting  was  called  to  take 
the  whole  matter  into  consideration,  and  the  district  was  unable 
to  elect  a  committee,  but  requested  the  selectmen  to  proceed  and 
build  the  house,  this  was  construed  as  neglect  and  refusal  on  the 
part  of  the  district  to  give  the  selectmen  jurisdiction.3 

§  11.  Building  contract. — A  district  authorized  its  school 
board  to  build  a  school-house,  and  to  expend  not  to  exceed 
$5,000  in  building,  and  to  procure  plans  for  the  house,  which 
were  to  be  presented  at  the  next  meeting.  At  that  meeting 
plans  were  not  accepted,  but  an  architect  was  empowered  to 
make  other  plans  and  specifications  for  a  certain  size  building, 
and  to  have  them  ready  at  the  next  meeting.  At  that  meeting 
no  plans  or  specifications  were  presented,  or  adopted  by  the  dis- 
trict, but  the  meeting  appointed  the  school  board  a  committee 
to  carry  out  the  previous  vote  of  the  district  to  build  a  school- 
house,  and  with  power  to  act  fully  in  the  matter,  limiting  the 
board  to  a  certain  size  for  the  building  and  the  amount  to  be- 
expended ;  the  power  thus  conferred  on  the  school  board  was. 
full  and  complete,  limited  only  as  to  size  of  school-house  and 

1  Keyser  v.  Sch.  Diet.,  35  N.  H.  477.  I    3  Blake  v.  Sturtevant,  12  N.  H.  567. 

2  George  v.  Meudon,  6  Mete.,  ( Mass. )  497.          | 

—  2 


18  PUBLIC   SCHOOL   LAW. 

the  amount  of  money  to  be  expended,  and  their  acts  were  legal 
and  binding.1  The  school  board  let  the  contract  for  building 
accordingly,  and  as  the  work  progressed  certain  changes  were 
necessary  in  order  to  make  the  building  symmetrical  and  strong, 
which  changes  were  made  by  order  of  the  board,  causing  an  ad- 
ditional outlay.  Held,  that  so  long  as  the  changes  were  bene- 
ficial and  necessary,  and  the  additional  cost,  added  to  the  original 
contract,  did  not  exceed  the  amount  limited  to  be  expended,  the 
board  had  the  power  to  make  them,  and  its  acts  are  binding.1 
A  committee  with  power  to  lease,  executed  a  lease  to  A  for  five 
years ;  another  committee,  same  year,  subsequently  executed  a 
lease  for  the  building  to  B  for  four  years,  which  lease  B  ac- 
cepted and  had  recorded ;  in  an  action  by  A  against  B,  under 
Conn.  Stat.,  title  56,  ch.  1,  §  12,  against  selling  pretended  titles, 
it  was  held  that  the  first  committee  had  authority  to  make  the 
lease  to  A,  and  that  A  was  rightfully  in  possession  under  it ; 
but  that  as  he  was  tenant  of  the  society,  claiming  under  it,  the 
society  were  not  ousted  of  their  possession,  and  consequently  B 
had  not  incurred  the  forfeiture  of  the  statute.8  The  board  of  di- 
rectors of  a  district  township,  having  power  to  make  contracts 
for  the  erection  of  school-houses  in  the  sub-districts,  may  ratify 
a  contract  of  this  character,3  but  where  vote  to  raise  money  to 
build  is  absolutely  void  for  want  of  power,  no  claim  will  lie 
against  district,  and  cannot  be  made  by  ratification.*  The  board 
of  public  schools  in  St.  Louis,  in  contracting  for  building  may 
take  a  bond  from  contractor  to  protect  material  and  labor,  and 
may  sue  in  their  behalf  on  said  bond  ;5  and  in  Iowa,  contract 
for  building  school-houses  must  be  let  to  lowest  bidder,  who 
must  give  bond  ;6  and  under  Ohio  Kev.  Stat.,  §  3988,  board  of 


lEdinburg  Am.  L.  &  M.  Co.  v.  City  of  Mit- 
chell, S.  D.,  48  N.  W.  131. 
2  Emerson  v.  Goodwin,  9  Conn.  422. 
8  Stevenson  v.  Tp.  of  Summit,  35  Iowa,  462. 


4 Brown  v.  Sch.  Disk,  (N.  H. )  10  A.  119. 
6  St.  Louis  Sch.  Bd.  v.  Woods,  77  Mo.  197. 
6  Weitz  v.  Ind.  Dist.  of  Des  Moines,  Iowa,  44 
N.  W.  696. 


BUILDING   CONTRACT.  ' 


19 


education  can  accept  only  the  lowest  responsible  bid  for  im- 
provement or  repairs,1  and  a  contract  for  building  at  larger  cost 
than  authorized  is  void.2 

§  12.  Building  contract. — In  Ind.  the  school  trustees  can- 
not bind  a  township  without  an  order  from  county  commission- 
ers, for  erection  of  a  school-house,  when  the  debt  of  a  township 
already  exceeds  the  money  in  hands  of  trustees  and  that  to  be 
raised  by  taxes  for  the  next  year  ;3  but  Mich.  Comp.  Law,  §  3618, 
in  providing  that  the  township  school  director  shall  keep  the 
necessary  school-house  furniture  in  proper  order,  and  that  his 
expenses  shall  be  subsequently  audited  and  paid,  does  not  in- 
tend that  money  must  be  put  into  his  hands  beforehand.*  A 
provision  in  a  building  contract  that  a  board  may  retain  in  their 
hands  a  certain  fund  to  meet  the  demands  of  material-men  is 
valid,5  and  equity  will  treat  the  transaction  as  an  assignment 
of  the  fund,  to  the  exclusion  of  any  other  creditors  of  the  origi- 
nal contractor.5  Contracts  should  be  made  with  reference  to 
the  funds  in  the  treasury  for  that  purpose,  and  the  district  board 
has  no  authority  to  draw  orders  on  a  fund  which  has  been  pro- 
posed, but  not  raised  by  taxation.6 

§  13.  Building  contract. — A  school  district  having  voted 
a  certain  sum  toward  purchasing  land  and  erecting  a  school- 
house,  it  is  no  defense  to  an  action  against  them  on  a  contract 
with  their  committee,  that  the  committee  expended  a  larger 
sum  than  that  named  in  the  vote,  nor  that  the  school-house  was 
worth  no  more  than  that  sum  ;7  and  where  the  district  voted  to 
build  a  school-house,  and  located  it,  and  chose  a  committee  to 
superintend  the  building  thereof,  and  the  committee  employed 


1  State  v.  Bd.  Ed.,  42  Ohio  St.  374. 

2  App.  Luburg,  23  W.  N.  C.  454,  Pa ;  17  A.  245. 
SMiddletowii  v.  G reason,  106  Ind.  18;  Rose- 
boom  v.  Jeff.  Sch.  Tp.,  122  lad.  377. 


*Hantranck  v.  Holikan,  46  Mich.  127. 
6Luthy  v.  Woods,  6  Mo.  App.  67. 
e  Sch.  Dist.  v.  Stough,  4  Neb.  357. 
i  Junkins  v.  Union  Sch.  Dist.,  39  Me. 


20 


PUBLIC   SCHOOL   LAW. 


the  plaintiffs  to  build  the  house,  and  they  built  it  where  the 
committee  directed,  but  not  where  the  district  had  voted  to 
locate  it,  and  on  land  owned  by  the  district,  the  plaintiffs  acting 
in  good  faith  under  the  direction  of  the  committee,  the  district 
was  held  liable.1  In  a  suit  on  a  building  contract  against  trus- 
tees, where  there  was  no  allegation  that  they  were  trustees  and 
had  contracted  as  such,  or  were  so  authorized,  a  recovery  could 
not  be  had.2  Where  a  school-house  was  used  to  keep  all  the 
schools  of  the  district,  without  objection  from  anyone,  and  the 
district  at  its  annual  meeting,  after  the  house  was  built,  voted 
to  sell  the  old  house  to  help  pay  for  the  new  one,  and  also  voted 
to  raise  money  to  pay  for  the  house  and  land,  the  evidence  was 
competent  to  show  a  ratification  of  what  had  been  done  by  the 
plaintiff  and  an  acceptance  of  the  house  by  the  district,  notwith- 
standing an  informality  in  the  notice  of  the  meeting.3 

§14.  Building  contract, — The  inhabitants  cannot  em- 
power a  building  committee  to  advertise  or  make  a  contract  for 
building  a  school-house,  or  do  any  other  act  binding  upon  the 
trustees,  without  their  assent.*  In  Ind.  the  township  trustees 
may  levy  a  tax  to  build  school-houses ;  and  their  contracts  for 
building  such  houses  are  binding  on  the  township.5  Where  a 
district  erected  a  school-house  with  a  hall  on  the  second  floor, 
on  a  petition  praying  for  an  injunction  against  the  collection  of 
tax  for  same,  on  the  ground  that  such  expenditure  was  illegal , 
the  court  found  that  the  house,  with  the  exception  of  the  hall, 
was  not  more  than  the  convenience  of  the  district  required  for 
school  purposes ;  it  was  held,  that  aside  from  any  question  as 
to  the  propriety  of  erecting  said  hall,  the  proceedings  of  the 


1  Baker  v.  Sch.  Diet.  No.  2,  46  Vt  189;  Norris 

v.  Sch.  Di8t.,  12  Me.  293. 
2Shuler  v.  Meyers,  5  Lans.  N.  Y.  170. 
*Chapin  v.  Sch.  Dist.  No.  2  in  Walpole,  30  N. 

H.  (10Fost.)25. 


*  People  v.  Banfield,  6  How.  (N.  T. )  Pr.  437. 
6  Heal  v.  Jefferson,  15  Ind.  431 ;  Rose  v.  Bath, 
10  Ind.  18. 


BUILDING   CONTRACT. 


21 


district  were  not  illegal  ;x  and  where  the  expense  of  such  hall 
was  about  one-fifth  of  that  of  the  whole  building,  and  it  would 
be  useful  and  convenient  for  holding  district  meetings  and  ex- 
hibitions, these  were  legitimate  objects ;  and  the  vote  authoriz- 
ing the  building  of  such  school-house  was  not  void,  because  it 
specified,  among  other  uses  of  the  hall,  that  of  holding  school 
society  meetings  and  lectures  therein.1 

§15.  Building  contract. — The  board  of  directors  of  dis- 
trict have  no  power  to  employ  one  of  their  number  to  oversee 
the  completion  of  a  school-house  abandoned  by  the  contractor, 
nor  can  he  recover  from  the  district  for  services  so  rendered.2 
Under  the  Iowa  law  which  empowers  the  electors  to  vote  a  tax 
"for  the  payment  of  any  debts  contracted  for  the  erection  of 
school-house,  and  for  procuring  district  libraries,"  etc.,  they  can- 
not be  incurred  by  the  directors  before  a  tax  has  been  voted 
upon.3  A  warrant  in  W.  Ya.  against  sheriff  for  material  and 
labor  furnished  for  school-house  is  a  novation,  and  after  accept- 
ance an  action  of  assumpsit  will  not  lie  against  board,  but  holder 
must  sue  sheriff.4  Where  board  of  education  does  not  take  bond 
required  from  contractor  for  building  school-house,  the  board 
will  be  liable  for  labor  and  material,  but  the  payments  thereon 
will  be  a  set-off  in  action  by  contractor  on  the  contract.5  Where 
land  is  held  by  city  in  trust  for  public  school,  the  board  of  edu- 
cation may  build  thereon,  (the  law  of  Neb.  forbidding  building 
of  brick  or  stone  school-house  without  at  first  obtaining  title  in 
fee.)6  In  111.  the  board  of  education  cannot  contract  to  build 
school-house  without  petition  of  majority  of  voters  of  district.7 


i  Sheldon  v.  Centre  Sch.  Diet.,  25  Conn.  224. 
2 Moore  v.  Toledo  City  Dist.,  55  Iowa,  654; 

Weitz  v.  Ind.  Dist.  Iowa,  42  N.  W.  577. 
*  Manning  v.  Van  Buren,  28  Iowa,  332. 


^Oanby  v.  Sleepy  Creek  D.  B.,  19  W.  Va. 

6  Wells  v.  Bd.  Ed.,  ( Mich. )  44  N.  W.  261 
estate  v.  Ben  ton,  (  Keb. )  45  N.  W.  794. 

7  Bd.  Ed.  v.  Roehr,  23  111.  App.  629. 


22  PUBLIC   SCHOOL   LAW. 

(They  may  now  on  petition  of  500  voters,  or  one-fifth  the  vot- 
ers.) In  assumpsit  to  recover  pay  for  building  a  school-house 
and  finding  materials  therefor,  the  district  cannot  object  to  the 
absence  of  proof  of  a  legal  meeting  to  determine  upon  the  build- 
ing and  the  raising  of  the  money  therefor,  unless  they  have 
raised  such  objection  by  their  specifications  of  defense,1  and  a 
contract  for  school-house  building  not  authorized  by  vote  re- 
quired by  statute  is  void ;  but  the  district  cannot  recover  money 
advanced  to  the  contractor.2 

§  16.  Building  contract. — Where  at  a  meeting  it  was  voted 
to  build  a  school-house,  and  the  committee  was  directed  to  make 
a  contract  proposed,  and  the  meeting  adjourned  to  a  certain  day, 
and  before  that  day  another  meeting  was  legally  called,  and  the 
district  voted  at  that  time  to  build  on  a  plan  proposed  by  another 
party,  the  second  meeting  rescinded  the  first  ;3  and  where  the 
meeting  notice  was  not  legal,  and  a  committee  was  chosen  who 
superintended  the  erection  of  a  school-house,  it  did  not  thereby 
bind  the  district.4  A  contract  to  build  a  school-house  for  an 
amount  in  excess  of  funds  on  hand,  or  subject  to  collection  for 
that  purpose,  and  the  amount  that  could  be  realized  by  the  max- 
imum tax  which  could  be  levied  by  the  inhabitants  for  the  cur- 
rent year  and  used  for  that  purpose,  is  void,  and  could  not  be 
ratified.5 

§  IT.  Building  contract. — Where  one  contracts  to  build  a 
school-house  in  a  particular  manner,  to  the  acceptance  of  a  dis- 
trict, and  erects  one  thereon  which  is  not  built  according  to  the 
contract,  and  the  committee  do  not  unreasonably  refuse  to  ac- 
cept it,  and  there  is  no  acceptance,  he  cannot  recover  ;6  nor  be- 
cause defects  were  waived,  unless  the  subsequent  work  is  done 


1  Collins  v.  School  Dis?t.,  52  Me.  533. 

2  Fluty  v.  Sc-h.  Dist,  49  Ark.  94. 

8  George  v.  Mendon,  6  Mete.,  ( Mass. )  497. 


*  Jordon  v.  Dist.,  38  Me.  164. 

«Cap.Bk.  v.  School  Dist.,  ( N.  D. )  48N.W. ; 

'Hill  v.  Sch.  Dist.  No.  2,  17  Me.  316. 


BUILDING   CONTEACT.  23 

conformably  to  the  contract,  or  accepted.1  Boards  of  school 
commissioners  in  cities  of  more  than  30,000  inhabitants,  un- 
der Ind.  Rev.  Stat.,  §  4460,  may  contract  for  building  school- 
house  and  give  its  notes  for  deferred  payments.2  Where 
contract  is  required  to  be  let  by  township  board  to  lowest  re- 
sponsible bidder,  this  power  cannot  be  delegated  to  sub-district 
officers.3  i 

§  18.  Under  Yt.  Gen.  Stat.,  ch.  22,  §  43,  it  is  within  the  prov- 
ince of  a  school  district  to  build  a  hall  in  connection  with  a 
school-house,  designed  to  accommodate  the  school  and  the  in- 
habitants of  the  district  for  the  purpose  of  examinations  and 
exhibitions,  and  such  other  things  as  are  proper  and  customary 
in  connection  with  district  schools.*  Mandamus  lies  to  compel 
trustees  to  erect  a  school-house,  according  to  the  superintend- 
ent's decision  in  Ind.;5  (but  see  §  1,  ante.)  No  power  is  given 
in  Wis.  R.  S.,  §  434,  to  the  district  board  to  build  a  school-house 
and  then  afterward  impose  the  cost  on  the  district,  and  Laws 
1883,  ch.  116,  do  not  imply  a  ratification.6  The  normal-school 
authorities,  having  accepted  the  buildings  erected  by  plaintiff  and 
leased  to  them,  which  buildings  were  erected  in  pursuance  of 
the  authority  granted  by  vote  of  the  citizens,  cannot  retain  the 
buildings  and  repudiate  the  conditions  attached  to  the  grant  ;7 
and  the  plaintiffs'  recovery  is  not  defeated  because  their  con- 
tract was  with  a  committee  styled  the  "  building  committee  of 
the  district,"  instead  of  a  "committee  to  superintend  the  laying 
out  and  expending  of  the  moneys  raised  by  the  district,"  such  a 
committee  being  the  only  one  authorized  by  Laws  1850,  art.  2, 
ch.  193,  §  9,  Me.8  A  sub-contractor  can  recover,  in  a  suit  against 


iHill  v.  Sch.  Diet.  No.  2,  17  Me.  316. 
2Fatout  v.  Indianapolis  S.  C.,  102  Ind.  223. 
3  Stock  Bd.  &c.  v.  Mills,  38  Ohio,  383. 
*Greenbanks  v.  Boutwell,  43  Vt.  207. 


*  State  v.  Caster,  11  Ind.  210. 
«Nevil  v.  Clifford,  63  Wis.  435. 
T  City  Emporia  y.  Partch,  21  Kas.  208. 
s Collins  v.  Sch.  Dist.,  52  Me.  522. 


PUBLIC   SCHOOL   LAW. 


the  district  and  the  principal  contractor,  only  an  indebtedness 
of  the  contractor  to  him  to  the  amount  due  such  contractor  from 
the  district.1 

§19.  Building  contract. — Under  act  of  1853,  since  re- 
pealed by  act  of  1857,  a  school-house  erected  in  a  sub-district 
formed  from  two  townships  was  to  be  paid  for  solely  by  the 
part  of  the  sub-district  included  in  the  township  in  which  it  is 
erected.2  The  Ohio  statute  authorizes  the  committee  to  assess 
"such  portion"  of  the  cost  as  they  deem  just  upon  the  sub- 
district,  and  under  that  they  may  assess  the  whole  upon  the 
sub-district,  and  their  certificate  to  the  auditor  need  only  state 
the  amount,  and  not  their  reasons  therefor.2  The  school  board 
has  no  power  to  contract  for  work  upon  a  school-house,  unless 
authorized  by  voters  of  the  district,  under  Neb.  Gen.  Stat.,  966, 
§§  29,  30.3  A  district  at  special  meeting  can  vote  to  raise  money 
to  build  school-house,  notwithstanding  a  previous  failure  of  such 
vote  the  same  year.*  Under  N.  J.  Law,  a  majority  vote  of  those 
present  at  a  meeting  is  binding,  except  in  regard  to  condemning 
land.*  In  Ga.  a  purchase  of  an  interest  in  a  building  for  public 
school  purposes,  where  it  is  not  kept  up  for  private  gain,  is  not 
illegal.5  By  the  111.  act  of  1857,  a  tax  to  erect  school-houses 
must  be  voted  by  the  people.6  Resolution  to  raise  a  single  sum 
for  building  and  furnishing  a  school-house  is  not  bad  for  un- 
certainty because  the  amounts  are  not  separately  stated.7  An 
order  of  a  board  of  Ind.  township  trustees,  signed  by  the  clerk 
and  president,  on  the  treasurer,  for  the  building  of  a  school- 
house,  was  a  valid  demand,  upon  which  an  action  might  be 
maintained.8 


1  Radennz  v.  Sch.  Dist.,  42  Wls.  897. 

2  Bryant  v.  Goodman,  9  Ohio  St.  471. 
*Gehling  v.  Sch.  Dist.,  10  Neb.  239. 
••State  v.  Clark,  (N.  J.)  19  A.  462. 


6Danully  v.  Cabaniss,  52  Ga.  211 
«  Beverly  v.  La  bin,  20  111.  357. 
*  State  v.  Clark,  ( N.  J. )  19  A.  462. 
8  Heal  v.  Jefferson,  15  Ind.  431. 


BUILDING  CONTRACT.  25 

§  20.  Building  contract. — It  was  held  in  Capital  Bank  of 
-St.  Paul  v.  School  Dist.  No.  53  of  Barnes  County,  48  K  W. 
Kep.  363  (K  D.)  —  opinion  by  Corliss,  C.  J. : 

UA  contract  authorized  by  the  inhabitants  of  a  school  district 
at  a  district  meeting,  to  build  a  school-house  for  an  amount  in 
•excess  of  funds  on  hand  or  subject  to  collection  for  that  pur- 
pose and  the  amount  that  could  be  realized  from  the  maximum 
tax  which  could  be  levied  by  the  inhabitants  for  the  current 
year  and  used  for  that  purpose,  is  void.  Therefore,  held,  that 
;such  a  contract,  void  because  the  district  board  had  no  author- 
ity to  make  it,  could  not  be  made  binding  upon  the  district  by 
subsequent  ratification  by  the  inhabitants.  Whether  there  was 
sufficient  evidence  of  such  ratification,  not  decided. 

"  Such  contract  being  impliedly  prohibited  by  statute,  the  re- 
ceipt by  the  district  of  the  fruits  thereof  creates  no  liability 
either  under  the  contract  or  for  the  value  received. 

"A  warrant  creates  no  greater  liability  than  the  debt  it  rep- 
resents, whether  in  the  hands  of  the  original  party  or  of  a  pur- 
chaser before  maturity  and  for  value.  .  .  . 

"That  the  action  of  the  district  board  in  making  the  contract 
to  construct  the  building  was  wholly  unauthorized  and  void, 
•cannot  well  be  disputed.  (See  Farmers  dec.  Bank  v.  School 
Dist.  No.  53,  [Dak.]  42  N.  W.  Kep.  767.)  The  power  to  desig- 
nate a  site  and  to  authorize  the  building  of  a  school-house  is 
Tested  exclusively  in  the  inhabitants.  But  it  is  urged  that,  al- 
though not  originally  binding  upon  the  district,  the  contract  has 
been  ratified  by  the  conduct  of  the  inhabitants  since  the  erection 
of  the  school-house  and  the  issuing  of  the  warrants  representing 
the  alleged  contract  price  therefor.  While  we  do  not  wish  to 
be  considered  as  assenting  to  this  view  of  the  evidence,  we  will 


26  PUBLIC   SCHOOL   LAW. 

assume,  for  the  purpose  of  this  opinion,  that  there  was  sufficient 
evidence  of  ratification  to  submit  to  the  jury :  still  we  think  the 
court  would  have  been  justified  in  rendering  judgment  for  de- 
fendant. Nay,  we  hold  it  would  have  been  the  duty  of  the 
court  to  give  such  judgment.  Katification  is  equivalent  only 
to  original  authority,  and  we  are  of  the  opinion  that  the  inhab- 
itants, under  the  statute,  had  no  authority  to  direct  the  building 
of  a  school-house  whose  cost  would  exceed  the  funds  provided 
for  that  purpose.  We  hold  that  this  contract  was  void,  not 
only  for  want  of  power  in  the  district  to  make  it,  but  because 
prohibited  by  the  spirit  and  necessary  implication  of  the  statute. 

"Our  views  find  support  in  the  decision  of  the  territorial 
supreme  court  in  Farmers*  &c.  Bank  v.  /School  Dist.  No.  53^ 
(Dak.)  42  K  W.  Kep.  767.  We  find  nothing  in  Capital  Bank 
v.  School  Dist.  No.  85,  id.  774,  decided  by  the  same  court  at 
the  same  term,  at  war  with  the  other  decision.  It  is  true  that 
in  the  first  case  the  court,  while  favoring  the  construction  we 
adopt,  limited  the  scope  of  its  decision  to  the  denial  of  the 
right  to  create  a  present  indebtedness  by  the  issue  of  warrants, 
payable  immediately,  in  excess  of  the  amount  of  tax  that  could 
be  levied  during  the  year  the  debt  was  contracted.  This  is  the 
doctrine  of  Minn,  under  a  similar  statute,  but  we  cannot  give  it 
our  assent.  .  .  . 

"  The  language  of  the  supreme  court  of  Wis.,  in  Kane  v.  School 
District  No.  3,  52  Wis.  502,  meets  our  full  approval :  'We  en- 
tertain very  grave  doubts  whether  the  board  and  the  voters  of 
the  district  combined  can  make  a  contract  payable  out  of  fund& 
not  intended  to  be  voted  or  raised  by  taxation  during  the  cur- 
rent year,  except  by  taking  such  proceedings  in  the  particular 


BUILDING   CONTRACT.  27 

cases  authorized  as  are  necessary,  under  the  statute,  to  make  a 
loan  in  behalf  of  the  district.  If  they  can,  then  it  would  be 
wholly  unnecessary  to  make  any  loans  on  behalf  of  a  district, 
and  the  district  might  during  any  current  year  incur  such  an 
amount  of  indebtedness,  to  be  charged  upon  the  funds  of  suc- 
ceeding years,  as  to  absorb  all  the  taxes  which  could  be  lawfully 
collected  in  such  years,  and  leave  the  district  wholly  without  re- 
sources, except  by  a  repetition  of  the  same  system  of  mortgag- 
ing the  future  for  the  necessities  of  the  present.  Either  this 
result  would  follow,  or,  if  such  liabilities  were  held  to  be  debts 
lawfully  incurred  by  the  district,  then  the  tax-payers  of  the  dis- 
trict could  be  compelled  to  raise  the  necessary  amount  to  pay 
the  same  at  the  time  agreed  upon  for  their  payment,  notwith- 
standing such  sum  might  exceed  the  limit  fixed  by  the  statutes 
for  raising  money  by  taxation  for  the  purposes  for  which  the 
debt  was  incurred.  It  seems  to  be  the  policy  of  the  laws  of  this 
state  to  restrict  the  expenditures  of  the  towns,  cities,  counties, 
and  school  districts  within  certain  specified  limits ;  and  in  the 
case  of  school  districts  it  has  put  a  very  effectual  restraint  upon 
such  expenditures  by  fixing  a  limit  to  the  amount  which  can  be 
lawfully  collected  from  the  tax-payers  of  the  district  for  school 
purposes  in  any  one  year.  To  give  proper  force  to  these  legis- 
lative restrictions,  it  would  seem  necessary  to  restrain  the  dis- 
tricts, as  well  as  their  officers,  from  contracting  debts  drawing 
interest  which  can  become  a  lawful  charge  upon  the  future  re- 
sources thereof.' " 

§  21.  Building  contract. — In  the  case  of  Sullivan  v.  School 
District,  39  Kas.  347,  it  was  decided :  "A  contract  for  building 
a  school-house,  void  because  made  by  only  one  member  of  the 
school  board,  may  afterward  be  ratified  and  made  binding  upon 


28  PUBLIC   SCHOOL   LAW. 

the  school  district  by  the  full  school  board,  or  by  the  school  dis- 
trict. The  evidence  in  the  present  case  tended  to  prove  such  a 
contract  and  such  a  ratification.  Held,  sufficient  when  attacked 
by  a  demurrer  to  the  evidence.  .  .  . 

"It  is  admitted  that  the  original  contract  with  Eley  was  at 
the  time  it  was  made  void,  for  the  reason  that  it  was  not  made 
by  the  entire  school  board,  but  only  by  a  portion  thereof. 
•(Aikman  v.  Sch.  Dist.,  27  Kas.  129  ;  Mincer  v.  Sch.  Dist.,  27 
id.  253.)  But  it  is  claimed  by  the  plaintiffs  that  the  evidence 
introduced  in  the  court  below  tended  to  show  a  ratification  of 
the  contract  by  the  entire  school  board,  and  also  by  the  entire 
school  district.  We  think  such  a  contract  might  be  ratified  and 
might  be  made  binding  upon  the  school  district.  (Fisher  v.  Sch. 
Dist.,  4  Gush.  494 ;  Keyser  v.  Sch.  Dist.,  35  K  H.  477 ;  Kim- 
loll  v.  Sch.  Dist.,  28  Yt.  [2  Williams]  8  ;  Jordan  v.  Sch.  Dist., 
38  Me.  164;  Cory  v.  Somerset,  45  N.  J.  Law,  445;  National 
Bank  v.  Albany,  92  K  Y.  363  ;  same  case,  2  Am.  &  Eng.  Corp. 
Cases,  61 ;  Read  v.  Plattsmouth,  107  U.  S.  568  ;  Corwin  v.  Wal- 
lace, 17  Iowa,  374 ;  Humphrey  v.  Mercantile  Association,  50  id. 
607 ;  Cook  v.  Tullis,  18  Wall.  332 ;  City  of  Conyers  v.  Kirk, 
(Ga.]  3  S.  E.  Rep.  442;  Sherman  v.  Fitch,  98  Mass.  59; 
Pinches  v.  Lutheran  Church,  55  Conn.  183 ;  Brown  v.  City  of 
Atchison,  39  Kas.  37,  and  the  numerous  cases  there  cited.  See 
also  Walworth  County  Bank  v.  farmers'  Loan  and  Trust  Co., 
16  Wis.  629  ;  Supervisors  v.  Schenck,  5  Wall.  77.) " 

§  22.  Building  control. — Under  Gen.  Stat.  Ky.,  pp.  1155, 
1167,  §7,  arts.  6,  8,  providing  that  it  shall  be  the  duty  of  the 
county  superintendent  to  condemn  dilapidated  school  buildings, 
.and  of  the  trustees,  when  notified  by  the  superintendent  of  the 
-condemnation,  to  repair  the  old  building  or  erect  a  new  one, 


BUILDING   CONTROL. 


29" 


the  superintendent  and  the  trustees  are  the  judges  of  the  neces- 
sity for  a  new  building,  and  their  action  cannot  be  questioned 
by  the  tax-payers  of  the  district  ;*  and  where  a  town  is  incorpo- 
rated within  the  limits  of  a  school  township,  a  school-house  sit- 
uated within  the  limits  of  a  town  passes  under  the  control  of 
the  school  trustees  of  the  town.2  Under  laws  of  Ind.,  state 
school  property  is  held  in  trust  for  school  purposes  by  the  per- 
sons or  corporations  authorized  for  the  time  being  to  control 
the  same,  and  it  is  within  the  power  of  the  legislature  at  any 
time  to  change  the  trustee.2  The  inhabitants  of  school  district 
having  the  power  of  determining  the  kind  of  houses  requisite- 
for  their  use  and  the  amount  necessary  to  defray  the  expenses, 
courts  ought  not  to  interfere,  except  in  cases  where  it  has  been 
manifestly  abused.3  Injunction,  and  not  mandamus,  is  the* 
proper  remedy  to  restrain  the  erection  of  a  school-house,  against 
parties  claiming  right  to  control  the  same.*  The  city  is  entitled 
to  possession  of  normal-school  building,  where  the  rent  is  un- 
paid, built  by  bonds  and  rented  to  pay  interest  on  the  bonds.5 
In  Ga.,  where  the  mayor  and  council  of  a  City  had  power  to 
levy  tax  for  and  control  school,  and  a  school  was  built  by  sub- 
scription, an  injunction  was  granted,  preventing  the  teacher 
retained  by  citizens  from  interfering  or  taking  possession  of 
building.6 

§  23.  Building  control. — Eev.  Stat.,  ch.  11,  §  22,  Me.,  em- 
powers school  districts  to  sell  and  dispose  of  any  school-house- 
or  other  property,  if  necessary,  and  the  school  district  is  the 
judge  of  this  necessity  ;7  and  before  school  districts  were  spe- 
cially authorized  to  do  so  by  statute,  they  might  make  sale  of 


1  Trustees   Sch.  Dist.  v.  Jamison,  (Ky.)  15 

S.  W.  l. 

2  Carson  v.  State,  27  Ind.  465. 

»  Sheldon  v.  Centre  Sch.  Diet.,  25  Conn.  224. 


*  State  v.  Custer,  11  Ind.  210. 

6  City  Emporia  v.  Partch,  21  Kas.  202. 

6Pattison  v.  City  of  Butler,  83  Ga.  606. 

i  Sch.  Dist.  No.  6  v.  ^Etna  Ins.  Co.,  54  Me.  505.. 


30  PUBLIC   SCHOOL   LAW. 

their  old  school-houses  which  had  become  unfit  for  the  use  of 
the  district.1  By  statute  Wis.  (Laws  1863,  ch.  155,  §48)  the 
district  board  of  school  directors  has  the  care  of  a  school-house 
belonging  to  the  district,  and  must  be  deemed  to  have  authority 
to  bring  a  suit  for  an  injury  to  the  school-house,  without  any 
direction  from  the  electors  ;2  and  among  the  powers  conferred 
on  school  trustees  is  that  of  taking  care  of  the  district  property, 
and  for  that  purpose  they  may  maintain  suits  at  law.3  A  com- 
plaint against  a  township  for  money  for  building  a  school-house 
should  be  against  the  school  township,  and  not  against  the  civil 
township.* 

§  24.  Building  repairs  and  appendages. — A  school  dis- 
trict is  bound  for  repairs  furnished  for  the  school-house,  not- 
withstanding the  sum  voted  for  specified  repairs  at  the  annual 
meeting  had  been  expended,6  and  where  a  town  voted  to  raise 
money  for  repairs  of  a  school-house,  which,  in  their  opinion, 
the  district  unreasonably  neglects  to  make,  it  would  not  be 
affected  by  the  fact  that  the  selectmen  had  unlawfully  removed 
the  house  from  the  lot,  or  that  the  tax  had  been  illegally  col- 
lected.6 But  a  district  cannot  be  considered  as  promising  to 
pay  for  unauthorized  repairs  upon  school-house  by  using  it 
afterwards,7  and  a  vote  of  a  school  district  to  authorize  laying 
out  a  certain  sum  for  repairing  the  school-house,  "does  not  au- 
thorize expending  a  greater  sum,  although  it  might  require  more 
to  put  the  house  in  good  repair."7  In  Iowa,  contracts  for  "re- 
pairs" are  under  the  control  of  the  board  of  directors  of  the 
district  township,  and  are  payable  out  of  the  "  contingent  fund  " 
(Laws  1862,  ch.  172,  §  44),  and  no  vote  of  the  electors  of  a  sub- 


1  Whitmore  v.  Hogan,  22  Me.  564. 

2  Sch.  Diet.  No.  8  v.  Arnold,  21  Wis.  657. 
-3Rapelye  v.  Van  Sickler,  1  Edin.  (N.  Y.)  Sel. 

CUB.  175. 


*  Carmichael  v.  Lawrence,  47  Ind.  554. 
«Conklin  v.  Sen.  Dist.,  22  Kas.  531. 
6Knowles  v.  Sch.  Dist.,  63  Me.  261. 
i  Davis  v.  Sch.  Diet.,  24  Me.  349. 


BUILDING  REPAIRS  AND   APPENDAGES. 


31 


district  is  necessary.1  A  committee  appointed  by  the  school  dis- 
trict according  to  statute,  to  purchase  and  repair  a  school-house, 
are  public  officers,  and  a  majority  may  act  for  the  whole.2  To 
recover  for  erecting  necessary  out-buildings  for  a  school-house, 
a  contract  made  by  the  board  in  regular  session  need  not  be 
shown,  where  the  buildings  were  erected  and  used  with  the 
knowledge  of  directors.3  In  R.  I.,  the  power  to  insure  the 
school-house  and  its  appendages  is  vested  in  the  district,  and 
not  in  the  trustee ;  but  a  legal  vote  of  the  district  to  raise 
money  to  pay  the  premium,  would  be  a  ratification.*  It  was 
competent  for  board  school  commissioners  of  the  city  of  Balti- 
more to  contract  for  heating  apparatus,  without  a  previous  ordi- 
nance prescribing  the  formalities  and  the  agencies  by  which  such 
contract  could  be  made,6  and  a  contract  for  school-district  out- 
house by  trustee  is  authorized  in  N.  Y.  (Laws  1887.)6  A  well 
is  necessary  appendage  to  school-house,7  and  a  line  fence  around 
the  school-house  is  a  necessary  appendage,8  and  an  inhabitant 
of  a  school  district  cannot,  at  his  own  pleasure,  remove  a  fence 
erected  by  the  trustees  against  their  remonstrance.9  A  director 
may  purchase  new  seats  under  a  resolution  adopted  at  annual 
meeting  directing  that  the  school  board  fix  the  school-house 
ready  for  the  winter  term.10  In  Ky.,  where  trustees  are  notified 
by  superintendent  that  a  better  house  is  required,  and  that  the 
old  one  has  been  condemned,  it  is  not  necessary  that  they 
see  the  order  of  condemnation  before  taking  action  ;n  but  a 
prudential  committee  cannot  recover  from  the  district  the 
money  expended  for  slight  occasional  repairs;  such  repairs 


1  Williams  v.  Peirmy,  25  Iowa,  436. 
2 Keyset  v.  Sch.  Disk,  35  N.  H.  477. 
s  Bellows  v.  West  F.  D.  T.,  70  Iowa,  320. 
4  Holt's  Appeal,  5  R.  I.  603. 

6  Baltimore  v.  Weatherby,  52  Md.  442. 
«Rauscher  v.  Cronk,  (N.  Y>. )  3  N.  Y.  S.  470. 

7  Herne  v.  Sch.  Dist.,  30  Kas.  377. 


"Creager  v.  Sch.  Dist,  62  Mich.  101. 
»Rapelye  v.  Van  Sickler,  1  Edm.  (N.  Y.) 

Sel.  Gas.  175. 

10 McLaren  v.  Town  Bd.,  48  Mich.  189. 
11  Trustees  Sch.  Dist.  v.  Jamison,  (Ky.)  15 
8.  W.  1. 


32  PUBLIC   SCHOOL   LAW. 

are  to   be  made  from  the  school-money  assigned  to  the  dis- 
trict.1 

§  25.  Building  repairs. — It  was  held  in  School  District  of 
the  City  of  Erie  v.  Fuess,  98  Penn.  St.  600  :  "A  school  district 
employed  a  contractor  to  repair  and  improve  a  school-house, 
under  the  direction  of  the  architect  of  the  improvements,  who 
was  employed  by  the  district,  as  to  the  manner  of  executing  the 
work.  The  contractor  was  not  to  begin  work  until  vacation. 
By  permission  of  the  architect  he  began  it  before,  and  he  neg- 
ligently injured  one  of  the  pupils  in  the  execution  of  it.  Two 
of  the  school  board  visited  the  building  after  the  work  was  be- 
gun, but  did  not  order  it  stopped.  In  an  action  by  the  injured 
pupil  against  the  district,  held,  (1)  that  the  district  was  not  liable 
for  the  contractor's  negligence  ;  (2)  that  the  permission  of  the 
architect,  being  outside  his  authority,  did  not  bind  the  district ; 
(3)  that  the  knowledge  and  inaction  of  the  two  members  of  the 
board  did  not  render  the  district  liable.  .  .  . 

"If  the  school  district  is  to  be  treated  strictly  as  a  municipal 
corporation,  the  authorities  settle  that  the  employment  of  Shenk 
did  not  operate  as  a  relief  to  the  contractor,  nor  did  it  make  the 
district  liable  as  a  master  or  principal  for  Hendry's  trespass  or 
carelessness.  But  school  districts  are  corporations  of  lower 
grade  and  less  power  than  a  city,  have  less  the  characteristics 
of  private  corporations,  and  more  of  a  mere  agent  of  the  state. 
They  are  territorial  divisions  for  the  purpose  of  the  common- 
school  laws,  and  their  officers  have  no  powers  except  by  express 
statutory  grant  and  necessary  implication ;  and  these  are  for 
the  establishment  and  maintenance  of  the  public  schools.  The 
common-school  system  partakes  much  of  the  nature  of  a  public 

i  Giles  v.  Sch.  Diet.  No.  14  in  Sanbornton,  31  N.  H.  ( 11  Fost. )  304. 


BUILDING,  USE.  33 


charity,  extends  over  the  whole  state,  is  sustained  by  the  public 
moneys,  and  the  directors,  who  devote  much  time  and  labor  for 
the  public  benefit,  receive  no  compensation  for  their  services. 
Unless  exempted  by  the  act  of  incorporation  or  by  law,  a  pri- 
vate corporation  is  liable  for  the  wrongful  acts  and  neglects  of 
its  officers  done  in  the  course  and  within  the  scope  of  their  em- 
ployment, the  same  as  a  natural  person  is  for  the  acts  and  neg- 
lects of  his  servant  or  agent.  A  less  stringent  rule  applies  to 
public  corporations,  and  least  stringent  of  all  should  be  applied 
to  school  districts,  whose  officers  have  limited  and  defined  pow- 
ers in  a  system  exclusively  for  the  free  education  of  the  children 
in  the  commonwealth. 

"The  school  board  stipulated  that  possession  of  the  building 
would  be  delivered  at  a  date  after  the  vacation  of  the  schools. 
Before  the  schools  had  been  closed  some  of  the  directors  dis- 
covered that  persons  were  making  a  dangerous  excavation,  and 
it  would  have  been  humane  in  them  to  have  endeavored  to  stop 
it.  The  board  might  have  been  convened,  and  if  necessary  the 
schools  suspended  until  the  progress  of  the  work  could  have 
been  enjoined  by  legal  process. 

"But  the  directors  omitted  such  action,  and  it  is  claimed  that 
the  district  is  liable  in  damages  for  the  injury  done  to  the  plain- 
tiff by  the  act  of  a  trespasser  or  the  unauthorized  act  of  a  con- 
tractor. Although  the  board  of  directors  took  no  measures  to 
prevent  the  excavation,  we  are  of  the  opinion  that  the  persons 
who  caused  the  injury  are  liable,  and  not  the  school  district." 
(Wood  v.  Ind.  Sch.  Dist.  of  Mitchell,  44  Iowa,  27;  Donovan 
v.  Bd.  Ed.,  85  N.  Y.  117;  Maximilian  v.  Mayor,  62  N.  Y.  160  ; 
Donovan  v.  McAlpin,  85  K  Y.  185.) 

§  26.    Building,  use. — A  statute  allowing  school-house  to 

—  3 


34:  PUBLIC   SCHOOL   LAW. 

be  used  for  religious  purposes  does  not  contravene  Iowa  con- 
stitution, art.  1,  §  3,  forbidding  any  law  respecting  the  establish- 
ment of  religion,  or  tax  for  maintaining  a  place  of  worship,1  and 
the  electors  of  school  district  may  legally  permit  school  build- 
ings to  be  used  for  religious  purposes.2  The  provision  of  111. 
Kev.  Stat.,  958,  §  39,  for  granting  the  temporary  use  of  a  school- 
house  for  religious  meetings  and  Sunday  schools,  is  constitu- 
tional ;  no  preference  is  thereby  given  by  law  to  any  religious 
denomination  or  mode  of  worship.3  The  trustees  of  a  school 
district  may,  subject  to  the  control  of  the  district  meeting,  law- 
fully permit  the  district  school-house  to  be  used,  out  of  school 
hours,  for  the  purpose  of  private  instruction  in  vocal  music  of 
the  district  scholars,  and  of  others  residing  in  the  district ;  and 
it  is  no  objection  to  such  use  that  the  teacher  is  compensated 
by  private  subscription  or  otherwise.*  In  Ind.,  a  school-house 
built  by  township  trustees  may  be  used  for  township  purposes, 
or  a  part  appropriated  therefor.5  Under  Ohio  Stat.  L.  1889, 
the  use  of  school-houses  may  be  allowed  for  literary  meetings, 
school  exhibitions,  singing-schools,  or  religious  meetings.6  In 
Ind.,  the  use  of  school-house  for  other  purposes  may  be  allowed 
on  consent  of  majority  of  voters  of  the  district.7  In  Ark.,  the 
use  of  building  for  private  school  may  be  allowed.8  In  Mass., 
the  use  is  under  supervision  of  school  committee  of  town.9 

§  27.  Building,  use. — The  question  as  to  permission  to  use 
the  buildings  for  other  than  public-school  purposes  is  one  on 
which  the  courts  have  largely  differed,  but  the  later  statutes  ap- 
pear to  be  growing  more  liberal,  and  favor  such  use.  But  Mo. 
school  law  (2  Wagner's  Stat.,  p.  1262)  confers  no  authority 


i  Davis  v.  Blodget,  50  Iowa,  11. 


dget, 
.  Hag 


2  Townsend  v.  Hagan,  35  Iowa,  194. 
s  Nichols  v.  Sch.  Dirs.,  93  111.  61. 
*  Appeal  of  Barnes,  6  R.  I.  591 
6  Trustees  &c.  v.  Osborne,  9  Ind.  458. 


e  Ohio  Acts,  1889. 

7  Hurd  v.  Walters,  48  Ind.  148. 

8  Ark.  L.  §  6235. 
»G.  S.  38,  §40. 


BUILDING,  USE. 


35 


upon  school  directors  to  allow  the  school  building  to  be  used 
for  a  Sunday  school.1  The  inhabitants  of  a  school  district  have 
no  right  to  use  the  school-house  for  religious  meetings  against 
the  objection  of  any  tax-payer  of  the  district,  even  though  the 
district  may  have  voted  to  allow  such  use,  and  an  injunction 
will  be  granted  against  such  use.2  A  lessor  demised  land  to 
the  trustees  of  a  school  for  the  purposes  of  the  school;  the 
beneficiaries  took  a  vested  interest,  and  neither  the  lessor  nor  the 
trustees  had  any  power  to  change  the  uses  declared  by  the  lease, 
that  is,  to  provide  that  the  school-house  should  be  used  for  re- 
ligious worship  on  Sundays  ;3  and  in  Kas.,  a  tax-payer  and 
patron  of  school  may  enjoin  misuse  of  school-house  for  social, 
religious  or  political  meetings,  even  though  a  majority  of  the 
tax-payers  consent  to  such  use  ;4  also,  in  Wis.,  a  district  board 
cannot  authorize  the  use  of  the  school-house  for  any  other  than 
school  purposes.6 

§  28.  Building,  use, — A  lease  of  public  school-house  for 
private  school  is  invalid,  and  such  use  may  be  restrained  ;6  and 
a  lease  of  a  public  school-house  for  a  private  school  for  a  term 
of  weeks  is  in  violation  of  the  trust  imposed  on  the  board  of 
•education  by  TO  Ohio  Laws,  195,  and  such  use  of  the  house 
may  be  restrained  at  the  suit  of  a  resident  tax-payer  of  the  dis- 
trict.7 A  prudential  committee  agreed  to  let  H.  the  district 
school-house  for  a  private  school  in  vacation,  and  H.  acted  upon 
the  agreement.  The  committee  could  not  revoke  it  without 
cause,  nor  could  he  allege  his  want  of  legal  authority  to  make 
the  agreement,  in  an  action  of  trespass  against  him  for  forcibly 
preventing  H.  from  continuing  the  school.8  A  lease  made  to 


iDorton  v.  Hearn,  67  Mo.  301. 
aSchofieldv.  Eighth  Sch.  Dist.,  27  Conn.  499. 
3 McDonald  v.  Starkey,  42  III.  442. 
-*  Spencer  v.  Sch.  Dist.,  15  Kas.  259. 


s  Sch.  Dist.  No.  8  v.  Arnold,  21  Wis.  657. 

6  35  Ohio  Stat.  143. 

?  Weir  v.  Day,  35  Ohio  Stat.  143. 

s  Russell  v.  Dodds,  37  Vt.  497. 


36  PUBLIC   SCHOOL   LAW. 

certain  trustees  and  to  their  successors  for  a  term  of  99  years, 
"for  and  in  consideration  of  the  many  advantages  of  a  perma- 
nent school,"  and  after  the  establishment  of  the  present  public- 
school  system  in  this  state,  and  not  limited  to  private  school 
purposes,  will  be  presumed  to  be  made  with  a  view  to  that 
system ;  and  the  court,  finding  the  premises  in  use  of  public- 
school  directors  as  such  trustees,  will  presume  them  to  be  the 
rightful  possessors.1  A  district  meeting  voted  to  have  a  private 
school  in  the  school-house,  and  nothing  appeared  but  that  if  it 
had  been  permitted  to  proceed  it  would  have  answered  all  the 
purposes  of  a  public  school,  and  been  open  to  all  the  children 
in  the  district,  and  taught  all  the  branches  of  common-school 
instruction  enumerated  in  the  statute,  and  no  others.  There 
was  nothing  inconsistent  with  the  rights  of  the  district  in  allow- 
ing the  school  to  continue  there  for  the  time  being  merely,  but 
the  district  could  not  confer  any  exclusive  right  to  the  posses- 
sion of  the  school-house  for  any  definite  time  upon  anyone.1 
By  implication,  the  prudential  committee  of  a  school  district 
must  have  the  right  to  occupy  the  school-house  when  the  school 
is  in  operation,  but  the  statute  does  not  give  him  the  exclusive 
control  of  the  school-house  in  his  district ;  that  power  must  be 
in  the  district.8 

§  29.  Colored  schools. — Where  teacher  refuses  to  accept 
colored  school,  but  takes  a  white  school,  subject  to  the  power 
of  board  to  require  teacher  to  take  any  school,  and  the  board 
assigns  her  to  a  colored  school,  which  she  refuses  to  teach,  she 
has  no  cause  of  action  against  the  city.3  "Taxation  to  sustain 
schools  is  permitted  because  the  education  of  the  children  of  a 
state  is  a  recognized  governmental  purpose ;  if  the  state  can 

i  McDonald  v.  Starkey,  42  111.  442.  I    « Jacksonville  v.  Akers.  11  111.  App.  393. 

"Chaplin  v.  Hill,  24  Vt.  528. 


COLORED    SCHOOLS.  37 


constitutionally  exclude  colored  children  from  all  benefits  aris- 
ing from  this  tax,  because  white  people  pay  the  tax,  there  is  no 
good  reason  why  the  state  may  not  limit  and  distribute  the  ben- 
efits of  government  in  every  respect  according  to  race  or  color, 
and  in  proportion  to  the  taxes  paid  by  each  race  or  color."1 
Where  the  statute  of  the  state  does  not  authorize  separate) 
schools  for  colored  pupils,  they  will  be  entitled  to  a  writ  of\ 
mandamus  for  the  purpose  of  obtaining  admission  to  public  [ 
schools,  and  shall  have  equal  facilities  and  be  entitled  to  attend 
the  same  school  as  the  whites.2  It  is  the  duty  of  district  oflfi 
cers  to  provide  and  furnish  equal  school  facilities  for  blacks  an 
whites,  and  they  cannot  claim  immunity  by  apportioning  to  the' 
pupils  of  each  color  their  proportion  of  the  fund.3>  The  privi- 
lege of  attending  the  public  schools  of  a  state  is  a  right  granted 
by  the  state,  and  when  granted  may  be  enforced  by  mandamus,4 
and  since  1880,  colored  children  cannot  be  refused  admission 
in  Cal.  to  the  public  schools,  notwithstanding  separate  schools 
have  been  established  for  them  by  board  of  education  or  school 
trustees,5  and  the  law  of  1869-70,  authorizing  separate  schools 
for  colored  pupils,  was  repealed  in  1880. 6  A  white  person  can- 
not enjoin  the  sale  of  bonds,  in  Ga.,  to  be  issued  and  sold,  and 
proceed^  divided  according  to  pro  rata  of  tax  as  to  colored  and 
white.  Where  the  state  has  not  authorize'd  separate  schoolsl 
for  colored  children,  a  city  board  of  education  has  no  right! 

71 
The  directors  cannot  maintain  a  separate 

school  solely  to  instruct  three  or  four  colored  children  of  the 
district,  when  these  can  be  accommodated  at  the  school-house 
with  the  other  scholars  of  district.9  The  law  contemplates  that 


i  Claybrook  v.  Owensboro,  23  Fed.  R.  634. 
2Knox  v.  Bd.  Ed.,  45  Kas.  156 ;  Bd.  Ed.  v.  Lin- 
non,  26  Kas.  1;  People  v.  Bd.,  101  111.  308. 
sMaddox  v.  Neal,  45  Ark.  121. 
*  Ward  v.  Flood,  48  Cal.  36. 


6  Wysinger  v.  Crookshank,  82  Cal.  588. 

e Reid  v.  Town  Eatonton,  (Ga.)  6  S.  E.  602. 

7  People  v.   Quincy  Bd.  Ed.,   101  111.  30d,— 

( Walker,  J..  dissenting. ) 

8  Chase  v.  Stephenson,  71  111.  383. 


38 


PUBLIC   SCHOOL   LAW. 


all  children  within  the  district  between  the  ages  of  six  and 
twenty-one  years,  regardless  of  race  or  color,  shall  have  equal 
and  the  same  right  to  participate  in  the  benefits  of  free  schools  ;* 
and  in  Iowa,  a  person  cannot  be  denied  admission  as  a  pupil  in 
the  public  schools  on  account  of  his  color,  nor  can  he  be  com- 
pelled to  attend  a  separate  school  for  colored  children.2  The 
act  of  1867  is  applicable  to  the  city  of  Detroit,  and  under  it  the 
school  board  of  that  city  cannot  exclude  a  resident  of  that  city 
from  any  of  its  schools  on  account  of  color,3  and  mandamus 
will  lie  to  compel  the  admission  of  a  negro  child  to  the  public 
schools.*  A  declaration  against  school  directors,  "  that  the 
plaintiff  is  a  resident  of  a  district,  having  children  which  he  is 
desirous  of  having  taught  in  said  school,  and  that  the  defend- 
ants, contriving  to  deprive  him  of  the  benefit  of  having  his  chil- 
dren therein  educated,  unlawfully  admitted  colored  children  into 
the  school,  whereby  the  plaintiff  was  deprived  of  the  benefit  arid 
advantage  of  having  his  children  taught  in  said  school,"  is  bad 
on  demurrer,  and  states  no  cause  of  action.5  Youth  of  negro, 
Indian  and  white  blood,  but  of  "more  than  half  white  blood, " 
are  entitled  to  the  benefit  of  the  school  fund.6  The  children  of 
a  white  mother  and  a  father  three-fourths  white,  are  entitled  to 
participate  in  the  school  fund.7  Where  the  number  of  colored 
.pupils  in  any  district  in  Pa.  is  less  than  twenty,  they  cannot  be 
excluded  from  the  schools  where  white  children  are  taught.8 

§  30.  Colored  schools. — A  state  has  the  power  to  provide 
by  statute  for  separate  schools  for  colored  children.9  It  is  now 
well  settled  that  any  classification  which  preserves  substantially 


1  Chase  v.  Stephenson,  71  111.  383. 

2  Smith  v.  Sch.  Dist.  of  Keokuk,  40  Iowa,  210; 

Dove  v.  Ind.  Sch.  Dist.,  41  Iowa,  689;  Clark 

v.  Bd.  Dire.,  24  Iowa,  266. 
« People  v.  Bd.  Ed.,  18  Mich.  400. 
*  State  v.  Stoutmeyer,  7  Nev.  342. 
6 Stewart  v.  Southard,  17  Ohio,  402. 


6  Lane  v.  Baker,  12  Ohio,  237. 

7  Williams  v.  Drs.,  etc.,  Wright  (Ohio)  579. 

8 Com.  v.  Williamson,  10  Phila.  (Pa.)  490. 

9Bd.  Ed.  v.  Linnou,  26  Kas.  1;  Cory  v.  Car- 
ter, 48  Ind.  327;  State  v.  McCann,  21  Ohio 
St.  198;  Ward  v.  Flood,  4SCal.  36;  Bertoii- 
meau  v.  Dire.,  3  Woods,  177. 


COLORED   SCHOOLS. 


39 


equal  school  advantages  does  not  impair  any  right,  and  is  not 
prohibited  by  the  constitution  of  the  U.  S.1  In  suit  of  man- 
damus for  school  facilities  for  blacks  as  well  as  whites,  the 
parents  of  the  children  are  proper  parties  plaintiff.2  Where 
there  are  white  and  colored  scholars,  the  laws  of  Ark.  contem- 
plated separate  schools.3  In  the  case  of  State  v.  McCann,  21 
Ohio  St.  211,  Judge  Day,  delivering  the  opinion  of  the  court, 
says :  "Equality  of  rights  does  not  involve  the  necessity  of  edu- 
cating white  and  colored  persons  in  the  same  schools,  any  more 
than  it  does  that  of  educating  children  of  both  sexes  in  the  same 
school,  or  that  different  grades  of  scholars  must  be  kept  in  the 
same  school;  any  classification  which  preserves  substantially 
equal  school  advantages  is  not  prohibited  by  either  the  state  or 
federal  constitution,  nor  would  it  contravene  the  provisions  of 
either." 

§31.  Colored  schools. — Where  the  statute  allowed  the 
board  of  education  to  adopt  regulations  so  that  pupils  could  be 
assigned  to  schools  affording  equal  advantages,  and  a  colored 
man  sought  by  mandamus  to  compel  the  admission  of  his  chil- 
dren to  a  school  where  white  children  were  taught,  instead  of 
that  for  colored  children  to  which  they  were  assigned  by  the 
board,  the  two  schools  affording  equal  advantages,  the  supreme 
court  refused  the  mandamus  ;*  and  the  right  to  enact  laws  as 
shall  give  to  the  children  of  the  white  and  colored  races  equal 
educational  advantages,  but  in  separate  schools,  has  been  rec- 
ognized and  declared.5  The  Ohio  act  of  Mar.  14,  1853,  oblig- 
ing towns  to  provide  schools  for  both  whites  and  blacks,  is  to 
be  construed  as  a  law  of  classification,  and  not  a  law  of  exclu- 


1Bertonmeau  v.  Dirs.,  3  Woods,  177. 

«Maddox  v.  Neal,  45  Ark.  121. 

3  County  Ct.  v.  Robinson,  27  Ark.  116. 


*  People  v.  Easton,  13  Abb.  Pr.  (N.  S. )  164, 1C3. 
6Puitt  v.  Coinm'rs,  94  N.  C.  709. 


40  PUBLIC   SCHOOL   LAW. 

sion,  though  its  practical  effect  may  be  exclusive  where  the 
number  of  black  children  is  too  small  to  fill  a  school  ;*  and 
"white"  and  "black"  are  to  be  taken  as  commonly  under- 
stood,1 and  under  it  a  colored  child  regarded  as  such  in  the 
community,  though  more  than  half  white,  (and  so  far  entitled 
to  vote,)  was  not,  as  matter  of  right,  entitled  to  admission  to 
the  white  schools  j1  and  it  will  be  presumed  that  a  person  who 
was  a  slave  before  1865,  in  this  country,  is  a  negro ;  and  the 
word  "generation,"  as  used  in  the  N.  C.  act,  means  a  single 
succession  of  living  beings  in  natural  descent,  and  is  not  equiv- 
alent to  "  degree  " ;  and  an  order  from  the  board  of  education 
to  admit  a  negro  pupil  to  a  school  from  which  negroes  are  ex- 
cluded does  not  require  the  school  committee  to  admit. him.2 
The  Ark.  law  of  1868  required  only  districts  containing  both) 
white  and  colored  children  to  have  separate  schools.3  In  Ind. 
the  complaint  to  obtain  admission  as  a  pupil  was  held  defective 
unless  it  affirmatively  showed  that  the  person  is  between  the 
ages  of  five  and  twenty-one  years,  is  neither  a  negro  nor  mu- 
latto, nor  the  issue  of  a  mulatto,  and  is  unmarried.*  Where,i 
under  the  laws  of  N.  Y.,  a  city  or  incorporated  village  of  the! 
state  creates  separate  schools  for  white  and  colored  children,  a » 
colored  child  has  no  right  to  attend  a  school  established  for 
white  children.5  A  pupil  may  be  refused  admission,  in  Cal.,  to 
a  public  graded  school  if  he  has  not  sufficient  education  to  enter 
the  lowest  grade  of  such  school.6  The  Ohio  act  of  1849,  "to? 
authorize  the  establishment  of  separate  schools  for  colored  chil-l 
dren,"  is  constitutional.7  A  law  authorizing  the  classification 
according  to  color  of  children  for  school  purposes,  and  the  es- 


*  Van  Camp  v.  Bd.  Ed.,  etc.,  9  Ohio  St.  406. 

2  McMillan  v.  Sen.  Com.,  107  N.  C.  609. 

3  County  Ct.  of  Union  County  v.  Robinson,  27 

Ark.  116. 


*  Draper  v.  Cambridge,  20  Ind.  268. 

6 Dallas  v.  Fosdick,  40  How.  (N.  Y. )  Pr.  i 

6  Ward  v.  Flood,  48  Cal.  36. 

7  State  v.  City  of  Cincinnati,  19  Ohio,  178. 


COLORED   SCHOOLS. 


tablishment  of  separate  schools  for  each  class,  equal  in  every 
particular,  does  not  contravene  the  fourteenth  amendment  to 
the  constitution  of  the  U.  S.1 

§  32.  Colored  schools. — The  act  establishing  the  Ala.  Uni- 
versity for  colored  people,  1887,  is  unconstitutional,  as  it  gives 
the  school  fund  into  the  care  of  the  trustees  and  takes  the  super- 
vision of  the  university  out  of  the  hands  of  superintendent  of 
instruction.2  Acts  K  0. 1885,  ch.  51,  and  1889,  ch.  60,  provid-l 
ing  for  separate  schools  for  the  Croatan  Indians,  from  which  all( 
negroes  "to  the  fourth  generation"  are  to  be  excluded,  is  con- 
stitutional.3 Where  separate  schools  are  maintained  for  colored 
pupils,  and  the  same  is  unlawful,  a  petition  in  quo  warranto 
.against  directors  will  not  be  allowed  where  petition  does  not 
show  improper  exclusion  of  whites/  Under  act  of  1887,  in  I 
•Ohio  separate  schools  for  colored  pupils  have  been  abolished,  \ 
and  the  regulations  must  be  made  without  regard  to  color.5  It 
Tvas  held,  under  the  Ind.  Stat.  1881,  courts  could  not  control 
the  rights  of  school  officers  to  establish  separate  schools  for 
-colored  pupils,6  and  mandamus  to  require  trustee  to  maintain 
separate  school  for  colored  children  was  refused,  the  necessity 
not  being  shown;7  and  since  1881  a  colored  scholar  could  not 
be  required  to  attend  separate  colored  schools  in  Pa.8  A  col- 
ored pupil  cannot  be  excluded  from  public  school  on  account 
of  color.9  The  general  school  committee  of  Boston  had  power 
to  establish  and  maintain  separate  schools  for  colored  pupils.10 
A  resolution  of  the  board  of  the  city  of  Albany,  N.  Y.,  assign- 
Ing  a  particular  school  for  colored  children,  and  excluding  col- 


i  State  v.  McCann,  21  Ohio  St.  198;  see  also  10 
F.  R.  735 ;  Lehew  v.  Brummell,  103  Mo.  546. 
SEllsberry  v.  Seay,  83  Ala.  614. 
*  McMillan  v.  Sch.  Com.,  107  N.  C.  609. 
<  People  v.  McFall,  26  111.  App.  319. 
.  Ed.  v.  State,  (Ohio)  16  N.  E.  373. 


«  State  v.  Gray,  93  Ind.  303. 
*  State  v.  Grubb,  85  Ind.  213. 
8  Kame  v.  Commonwealth,  101  Pa.  St.  490. 
»  State  v.  Union  D.  S.  T.,  46  N.  J.  L.  76.  - 
1° Roberts  v.  Boston,  5  Cush.  (Mass.)  198. 


42  PUBLIC   SCHOOL   LAW. 

'ored  children  from  schools  assigned  for  white  children,  is  not  in 
violation  of  the  fourteenth  amendment  of  the  constitution  of  the 
U.  S.  ;x  and  where  the  officers  provide  public  schools  of  equal 
excellence  for  all  children,  but  do  not  allow  children  of  colored 
parents  to  attend  the  same  schools  with  children  of  white  par- 
ents, the  rights  of  the  colored  under  the  constitution  of  the 
U.  S.  are  not  thereby  impaired.2 

§  33.  Colored  Schools.— In  Hall  v.  De  Cuir,  95  U.  S.  504, 
it  was  held  :  "  Questions  of  a  kindred  character  have  arisen  in 
several  of  the  states,  which  support  these  views  in  a  course  of 
reasoning  entirely  satisfactory  and  conclusive.  Boards  of  edu- 
cation were  created  by  a  law  of  the  state  of  Ohio,  and  they  were 
authorized  to  establish  within  their  respective  jurisdictions  one  or 
more  separate  schools  for  colored  children  when  the  whole  num- 
ber by  enumeration  exceeds  twenty,  and  when  such  schools  will 
afford  them,  as  far  as  practicable,  the  advantages  and  privileges 
of  a  common-school  education.  Under  that  law,  colored  chil- 
dren were  not  admitted  as  a  matter  of  right  into  the  schools  for 
white  children,  which  gave  rise  to  contest,  in  which  the  attempt 
was  made  to  set  aside  the  law  as  unconstitutional ;  but  the  su- 
preme court  of  the  state  held  that  it  worked  no  substantial  in- 
equality of  school  privileges  between  the  children  of  the  two 
classes  in  the  locality  of  the  parties  ;  that  equality  of  rights  does 
not  involve  the  necessity  of  educating  white  and  colored  persons 
in  the  same  school  any  more  than  it  does  that  of  educating  chil- 
dren of  both  sexes  in  the  same  school,  or  that  different  grades 
of  scholars  must  be  kept  in  the  same  school ;  and  that  any  clas- 
sification which  preserves  substantially  equal  school  advantages 
is  not  prohibited  by  either  the  state  or  federal  constitution,  nor. 

1  People  v.  Easton,  13  Abb.  N.  Y.  Pr.  (N.  S.)  159.    |    2  Bertonmeau  v.  Scb.  Drs.,  3  Woods  C.  Ct.  177. 


COLORED   SCHOOLS.  43: 


would  it  contravene  the  provisions  of  either.  (State  v.  McCann 
et  al.,  21  Ohio  St.  198.)  Separate  primary  schools  for  colored 
and  for  white  children  were  maintained  in  the  city  of  Boston. 
Children  in  the  state  who  are  unlawfully  excluded  from  public- 
school  instruction  may  recover  damages  therefor  against  the 
city  or  town  by  which  such  public  instruction  is  supported.  It 
appears  that  the  plaintiff  was  denied  admission  to  the  primary 
school  for  white  children,  and  she  by  her  next  friend  claimed 
damages  for  the  exclusion ;  but  the  supreme  court,  Shaw,  C.  J.,. 
giving  the  opinion,  held  that  the  law  vested  the  power  in  the 
committee  to  regulate  the  system  of  distribution  and  classifica- 
tion, and  that  when  the  power  was  reasonably  exercised  their 
decision  must  be  deemed  conclusive.  Distinguished  counsel  in- 
sisted that  the  separation  tended  to  deepen  and  perpetuate  the 
odious  distinction  of  caste ;  but  the  court  responded,  that  they 
were  not  able  to  say  that  the  decision  was  not  founded  on  just 
grounds  of  reason  and  experience,  and  in  the  results  of  a  dis- 
criminating and  honest  judgment.  (Roberts  v.  City  of  Boston^ 
5  Gush.  [Mass.]  198.) 

"Age  and  sex  have  always  been  marks  of  classification  in\ 
public  schools  throughout  the  history  of  our  country,  and  the 
supreme  court  of  Nev.  well  held  that  the  trustees  of  the  public 
schools  in  that  state  might  send  colored  children  to  one  school 
and  white  children  to  another,  or  they  might  make  any  such 
classification  as  they  should  deem  best,  whether  based  on  age,. 
sex,  race,  or  any  other  reasonable  existent  condition.  (State  v~ 
Duffy,  7  Nev.  342.) 

"Directors  of  schools  in  Iowa  have  no  discretion,  under  the 
existing  law  of  the  state,  to  deny  a  youth  of  proper  age  admis- 
sion to  any  particular  school,  on  account  of  nationality,  color,, 


44  PUBLIC   SCHOOL   LAW. 

•or  religion.  Former  statutes  of  the  state  invested  the  directors 
-with  such  discretion,  and  it  is  impliedly  conceded  that  it  would 
be  competent  for  the  legislature  again  to  confer  that  authority. 
(Clark  v.  The  Board  of  Directors,  24  Iowa,  266.) 

"School  privileges  are  usually  conferred  by  statute,  and  as 
such  are  subject  to  such  regulations  as  the  legislature  may  pre- 
scribe. Such  statutes  generally  provide  for  equal  school  advan- 
tages for  all  children,  classifying  the  scholars  as  the  legislature 
in  its  wisdom  may  direct  or  authorize ;  and  the  supreme  court 
•of  N.  Y.  decided  that  the  legislature  of  the  state  may  from  time 
to  time  make  such  limitations  and  alterations  in  that  regard  as 
they  may  see  fit.  (Dallas  v.  Fosdick,  40  How.  [N.  Y.]  Pr.,  249.) 
Public  instruction  of  the  kind  is  regulated  in  that  state  by  offi- 
•cial  boards  created  for  the  purpose ;  and  it  is  settled  law  there 
that  the  board  may  assign  a  particular  school  for  colored  chil- 
dren, and  exclude  them  from  schools  assigned  for  white  chil- 
dren, and  that  such  a  regulation  is  not  in  violation  of  the 
.fourteenth  amendment.  (People  v.  Gaston,  13  Abb.  [N.  Y.]  Pr., 
.K  S.  160.)" 

34.  Contract;  attorney. — Where  attorney  was  employed 
by  director  to  defend  a  suit  and  it  was  dismissed,  and  another  suit 
brought  in  the  circuit  court,  and  then  the  electors  met  and  ap- 
pointed a  committee  to  defend,  one  of  which  committee  was 
this  attorney,  a  valid  contract  existed.1  The  Ind.  state  superin- 
tendent of  public  instruction  and  state  auditor  may  employ  an 
attorney  to  collect  a  desperate  claim  due  the  state  school  fund.2 
Where  prudential  committee  were  instructed  by  vote  of  district 
to  prosecute  for  trespasses  to  property,  the  district  was  liable 
for  attorney-fees,8  and  a  verbal  contract  of  a  school  board  em- 

i  McCaffrey  v.  Sch.  Diet.,  74  Wis.  100.  I    »  Kingsbury  v.  Sch.  Dist.,  12  Mete.  ( Mass. )  99. 

-2  State  v.  Sims,  76  Ind.  328. 


CONTRACTS,  NOTES,  ETC. 


45- 


ploying  an  attorney  is  valid,1  but  the  prudential  committee  have 
no  authority,  without  a  vote  of  the  district,  to  employ  counsel 
in  the  name  of  the  district  to  defend  a  suit  against  an  officer  of 
the  district  in  which  the  district  may  be  interested.2  A  school, 
district,  under  act  1821,  ch.  117,  §  8,  Me.,  may  raise  money  to 
pay  expenses  of  litigation  growing  out  of  the  exercise  of  express- 
powers  conferred  by  the  statute.3  In  Iowa,  the  president  of  a, 
school  district  township  has  no  authority  to  employ  counsel,  un- 
less in  a  case  brought  by  or  against  the  district,  and  an  appeal 
to  the  county  or  state  superintendent  contesting  the  location  of 
school-house,  is  not  a  case.*  The  pendency  of  a  suit,  and  the 
employment  of  an  attorney  by  the  prudential  committee,  with- 
out authority,  though  known  to  the  officers  and  to  the  voters,, 
does  not  show  a  ratification.6 

§  35.  Contracts,  notes,  etc. — Notes  given  by  trustees  for 
indebtedness  of  the  district  are  binding  on  the  district,  and  on* 
the  successors,6  and  plaintiff  suing  on  note  made  by  trustee  for 
price  of  land,  need  not  allege  facts  showing  that  statute  had 
been  complied  with,7  and  the  trustees  of  a  district  may  become 
indorsers  of  a  promissory  note,  and  set  off  the  same  in  an  action 
against  them ;  nor  are  they  under  any  obligation  to  show  how 
they  came  by  the  note  until  it  is  impeached.8  It  is  no  defense 
to  a  note  given  to  school  commissioner  for  school  funds  that 
there  was  an  agreement  by  which  the  commissioner  was  to  use 
the  money  for  private  speculation.9  The  assent  of  a  majority 
of  the  board  at  a  legal  meeting  is  essential  to  the  validity  of  an 
order.10  The  directors  of  a  school  district  have  power  to  borrow 


1Page  v.  Township  Bd.,  59  Mo.  264. 

2  Harrington  v.  Sen.  Diet.  No.  6,  30  Vt.  155. 

a  Sch.  Dist.  No.  1  v.  Bailey,  12  Me.  (3  Fairf. ) 

254. 

4Templin  v.  Tp.  of  Fremont,  36  Iowa,  411. 
6  Harrington  v.  Sen.  Dist.,  30  Vt.  155. 


'Bobbins  v.  Sch.  Dist.,  10  Minn.  340. 
7  Craig  Sch.  Tp.  v.  Scott,  ( Ind. )  24  N.  E.  585. 
8Brewster  v.  Colwell,  9  Wend.  (N.  Y. )  28. 
»  Ware  v.  Kelley,  22  Ark.  441. 
10Herrington  v.  Sch.  Dist.  Tp.,  47  Iowa,  11;, 
McCortle  v.  Bates,  29  Ohio  St.  419. 


-46  PUBLIC   SCHOOL*  LAW. 

money  to  discharge  a  debt  which  has  been  legitimately  created, 
and  may  pledge  the  credit  of  the  district,  but  they  cannot  in 
Iowa  make  the  obligations  evidencing  such  a  debt  bear  a  higher 
rate  of  interest  than  six  per  cent.1  A  note  reciting  that  "  in- 
habitants of  Dist.  No.  5,  in  S.,  promise  to  pay,"  etc.,  and  signed 
by  "B.,  treasurer  of  Dist.  No.  5,"  was  held  to  be  the  promise 
of  the  district,2  but  a  trustee  cannot  borrow  money  and  give 
notes  in  name  of  school  corporation,  especially  where  there  is 
no  necessity  and  party  had  notice  ;3  but  advancements  by  offi 
•cers  for  the  use  of  the  district  in  anticipation  of  taxes  may  be 
treated  as  borrowed  money,*  and  advancement  for  that  purpose 
was  held  to  be  an  implied  pledge  of  funds  for  the  payment  of 
same.6 

§  36.  Contracts,  notes,  etc. — A  township  trustee  has  no 
power  to  borrow  money  for  the  school  township  ;  but  for  money 
borrowed,  and  actually  used  in  a  legitimate  way,  the  township 
may  be  held  liable.6  Where  no  notice  was  given,  a  vote  to  hire 
money  at  a  district  meeting  did  not  impose  liability  ;  and  a  sub- 
sequent vote  at  a  meeting  legally  called,  to  pay  the  debts  due 
by  the  district,  was  not  a  ratification.7  In  111.  the  board  of 
school  directors  have  no  power  to  make  acceptances  of  orders 
or  bills  of  exchange  so  as  to  bind  the  school  district  and  create 
a  right  of  action  thereon  against  them.8 

§  37.  Contract ;  officer  interested. — Where  a  committee 
employ  a  person  to  labor  for  their  principal,  the  person  em- 
ployed may  by  a  suit  in  his  own  name  recover  of  their  principal 
the  amount  due  him,  though  he  is  one  of  their  own  number, 
employed  in  good  faith  by  the  committee.9  Proceedings  to  re- 


1  Austin  v.  Colony,  51  Iowa,  102. 

2  Whitney  T.  Stow,  111  Mass.  368. 

3  Union  v.  Crawfordsville  Bk.,  102  Ind.  464. 

4  Brock  v.  Bruce,  ( Vt. )  10  A.  93. 
«Zartman  v.  State,  (Ind.)  10  N.  E.  94. 


6  Crawfordsville  Bank  v.  Union,  75  Ind.  361 ; 

Wallis  v.  Johnson,  75  Ind.  368. 
»  Lander  v.  Sch.  Dist,,  33  Me.  239. 
8  Peers  v.  Bd.  Ed.,  72  111.  508. 
» Junkins  v.  Union  Sch.  Dist.,  39  Me.  220. 


CONTRACT ;   OFFICER  INTERESTED.  47 

move  a  director  for  refusing  to  recognize  a  teaching  contract 
were  taken  by  a  township  board,  one  of  the  members  of  which 
was  related  to  a  third  person  who  had  a  contract  subject  to  the 
same  objections  ;  this  did  not  disqualify  him  from  acting  on  the 
case  before  the  board.1  A  director  will  not  forfeit  his  office  by 
making  contract  with  his  minor  daughter  as  a  teacher  ;2  and  a 
contract  with  one  of  the  school  committee  to  board  teacher  is 
valid.3  A  contract  by  a  school  board  for  the  purchase  for  a 
school-site,  of  land  owned  by  one  of  its  members,  the  resolution 
to  purchase  which  was  carried  by  his  vote,  all  the  members  act- 
ing in  good  faith,  is  not  void,  but  voidable  merely,  and  is  bind- 
ing when  ratified  by  a  new  board  acting  with  full  knowledge  of 
all  the  facts.*  The  Pa.  act  of  Mar.  31,  1860,  p.  66  (P.  L.  400), 
providing,  "Nor  shall  any  member  of  any  corporation,  or  any 
officer  or  agent  thereof,  be  in  any  wise  interested  in  any  con- 
tract for  the  sale  or  furnishing  of  any  supplies  or  materials  to 
be  furnished  to  or  for  the  use  of  any  corporation,  municipality 
or  public  institution  of  which  he  shall  be  a  member  or  officer, 
or  for  which  he  shall  be  an  agent,  nor  directly  or  indirectly 
interested  therein,  nor  recover  any  reward  or  gratuity  from  any 
person  interested  in  such  contract  or  sale,"  cannot  be  extended 
to  include  cases  of  sales  of  realty  not  mentioned  therein.*  A 
member  of  the  district  school  board  during  his  membership 
took  a  contract  from  the  board  for  the  erection  of  a  school- 
house,  and  participated  in  the  proceedings  for  letting  the  con- 
tract; this  was  contrary  to  public  policy,  and  forbidden  by 
law.  A  school  director  is  prohibited  from  making  personal 
contract  with  district,  and  money  paid  thereon  may  be  collected 


1  Hamtramck  v.  Holihan,  46  Mich.  127. 
2Siate  v.  Burchfield,  12  Lea,  (Tenn. )  30. 
"Brown  v.  Sch.  Dist.,  55  Vt.  43. 


*  Trainer  v.  Wolfe,  140  Pa.  St.  279. 
epickett  v.  Sch.  Dist.  25  Wis.  551. 


48  PUBLIC   SCHOOL   LAW. 

from  him;1  and  an  official  making  contract  for  district  must 
not  be  party  to  same  individually  ;2  and  where  the  statute  for- 
bade a  school  officer  from  being  interested  in  a  contract,  and  a 
contractor  was  elected  to  the  office  of  clerk  of  district,  and  the 
incumbent  refused  to  deliver  up  the  books  and  office,  on  the 
ground  that  the  contractor  could  not  fill  both  positions  and  was 
therefore  ineligible,  the  court  refused  to  install  the  newly-elected 
clerk,  and  sustained  the  action  of  the  party  refusing  to  give  up 
the  office.3 

§38.  Contracts;  officers'  liability.— (See  also  "Officers' 
Liability.)  Where  the  president  of  a  board  promises  in  their 
behalf,  by  a  note,  to  pay  a  debt  contracted  in  the  erection  of  a 
school-house,  he  acts  as  a  public  agent,  and  therefore  is  person- 
ally liable  on  the  note.*  Where  a  contract  by  directors  did  not 
expressly  show  that  they  were  acting  on  behalf  of  the  district^ 
or  intending  to  make  the  instrument  the  contract  of  the  district, 
the  directors  were  individually  liable.5  In  a  suit  against  school 
directors  in  their  individual  capacity  on  a  contract  purporting 
to  be  signed  by  defendants  in  their  official  capacity,  and  suffi- 
cient in  form  to  bind  the  district,  the  averment  that  it  had  been 
determined  in  a  former  action,  in  which  defendants  were  not 
parties,  that  they  had  signed  the  instrument  in  their  individual 
capacity,  did  not  aver  a  cause  of  action.8 

§  39.   Contract,  power. — Under  Laws  1858,  ch.  52,  §§  1,  8, 
Iowa,  the  board  of  directors  may  bind  the  district  by  a  contract 
after  their  successors  have  been  elected,  but  before  they  have 
qualified.7     Contract  by  two  trustees,  in  Minn.,  must  be  author-, 
ized  at  a  meeting  of  the  trustees,  but  use  of  supplies  may  amount 


iSch.  Dist.  v.  Parks,  85  111.  338;  Hewitt  v. 

Normal  Sch.  Diet.,  94  111.  528. 
2Currie  v.  Sch.  Dist.,  35  Minn.  163. 
•Western  v.  Lane,  40  Kas.  480. 


*  Hodges  v.  Eunyan,  30  Mo.  491. 

«  Sharp  v.  Smith,  32  111.  App.  336. 

•  Armstrong  v.  Borland,  35  Iowa,  537. 
7Dubuque  &c.  College  v.  Dubuque,  13  la.  555. 


CONTRACT,  POWER.  49 


to  a  ratification.1  One  appointed  to  take  charge  of  a  public 
school  may,  if  necessary,  employ  a  subordinate  to  keep  order 
outside  while  the  school  is  in  session,  especially  if  one  of  the 
school  committee  approves ;  and  the  city  will  be  liable,  although 
the  school  committee  has  not  acted  officially.2  The  board  of  an 
independent  district  may  authorize  steps  to  be  taken  to  secure  a 
highway  by  its  school-house,  and  may  bind  district  for  expenses 
incurred.3  Where  a  district  committee  contract,  but  not  bind- 
ing the  district,  and  the  district  votes  to  accept  and  pay  a  cer- 
tain sum,  this  binds  them  to  pay  a  quantum  meruit,  not  limited 
to  the  sum  voted.*  A  legislative  change  of  the  board,  without 
altering  the  limits  of  the  district,  does  not  affect  the  obligation 
of  a  legally  created  debt  thereof.5  Where  a  committee  were  au- 
thorized and  bought  a  lot  for  a  site,  and  gave  their  individual 
notes,  and  the  district  then  rescinded  the  authority,  the  district 
was  liable  to  the  officers  for  the  amount  paid  for  it.6  Those 
who  contract  with  directors  cannot  repudiate  their  contract  be- 
cause their  action  was  unrecorded.7  Where  trustees  are  author- 
ized by  legislature  to  administer  school  property  and  lease  it 
for  not  more  than  fifty  years,  they  may  lease  for  that  term  the 
16th  section  in  their  township.8  Where  contract  and  statute 
gave  board  power  to  remove  janitor  at  pleasure,  a  removal  of 
janitor  before  expiration  of  year  was  authorized.' 

§  40.  Contract,  power. — Board,  furnished  to  teacher,  under 
a  contract  with  the  prudential  committee,  constitutes  a  charge 
upon  the  school-money  coming  to  the  hands  of  the  committee ; 
and  payment  by  him  out  of  the  fund,  made  after  his  term  had 
expired,  but  before  demand  upon  him  for  the  money,  extin- 


i  Andrews  v.  Sch.  Disk,  ( Minn. )  33  N.  W.  217. 
2Huse  v.  Lowell,  10  Allen,  (Mass. )  149. 
3  Flint  River  Ind.  Diet.  v.  Kelley,  55  Iowa,  568. 
^Kimball  v.  Sch.  Diet.,  28  Vt.  8. 
6  Shankland  v.  Phillips,  3  Tenn.  Ch.  556. 
—  4 


«  Kingman  v.  13th  Sch.  Dist.,  2  Cush.  (Mass.  ) 

426. 

?  Sch.  Dirs.  v.  McBride,  22  Pa.  St.  215. 
8  Garland  v.  Jackson,  7  La.  Ann.  68. 
a  Weldman  v.  Bd.  Ed.,  ( N.  Y. )  7  N.  Y.  S.  309. 


50  PUBLIC   SCHOOL   LAW. 

guishes  the  claim  against  the  district  for  the  board.1  Where 
the  committee  notified  the  contractor  that  the  house  would  not 
be  accepted  unless  defects  were  remedied,  and  he  replied  that 
he  should  do  the  work  as  he  pleased,  and  did  not  wish  their  in- 
terference until  the  work  was  done,  no  implication  can  arise 
from  their  silence  that  the  defects  were  waived.2  Ind.  Kev.  Stat., 
;§§  6006,  6007,  as  to  limiting  debts,  applies  to  trustees  of  school 
townships.3  A  member  of  a  board  of  education  cannot  change 
a  contract  made  by  the  board,  unless  he  has  been  authorized,* 
and  the  individuals  composing  the  board  have  no  power  to  act 
so  as  to  bind  the  corporation  unless  at  a  meeting  of  the  board, 
and  any  such  contract  is  void  unless  regularly  approved.5 
Where  two  persons  are  authorized  by  a  board  to  make  a  con- 
tract in  its  behalf,  a  contract  signed  and  sealed  by  one  only,  is 
not  evidence  against  the  district.8  Contracts  made  with  officers 
de  facto  are  not  binding  where  parties  contracting  are  warned 
and  have  notice  ;7  contract  made  by  part  of  directors  at  irreg- 
ular meeting  and  no  notice  given  to  other  directors,  is  not  bind- 
ing.8 Under  the  Minn.  Comp.  Stat.,  the  trustees  of  districts 
cannot  take  a  debt  out  of  the  statute  of  limitations  by  a  new 
promise.*  Where  defendant  claimed  the  indebtedness  was  in- 
curred by  a  fraudulent  agreement  between  plaintiff  and  its  own 
agents,  it  was  competent  for  plaintiff  to  show  that  there  was  a 
valid  consideration.10  If  a  district  vote  to  raise  money  for  pur- 
poses not  authorized,  it  is  a  nullity,  and  whoever  presumes  to 
carry  it  into  effect,  does  so  at  his  peril ;"  and  the  powers  of  the 


i  Barrett  v.  Sch.  Dist.  No.  2,  37  N.  H.  445. 

a  Hill  v.  Sch.  Dist.  No.  2,  17  Me.  316. 

8  Middletown  v.  Greeson,  106  Ind.  18. 

*State  v.  Tiedeman,  69  Mo.  515. 

&Bd.  v.  Chitwood,  8  Ind.  504;  Ohio  v.  Treas., 
22  Ohio  St.  144;  McCortles  v.  Bates,  290 
Ohio  St.  419 ;  Hazen  v.  Leiche,  47  Mich.  626. 

«McLainv.  SnyderTp.  Sch.  Dist.,  12Pa.St.204. 


»  Genesee  Ind.  Sch.  Dist.  v.  McDonald,  98  Pa. 
St.  444  ;  White  v.  Sch.  Dist.,  (  Pa.  )  8  A.  443. 


(  Pa.  )  8 
k.  571  ; 


8  Sch.  Dist.  v.  Bennett,  52  Ark.  571  ;  Pa.  L. 
Rod  Co.  v.  Cass  Bd.  Ed.,  20  W.  Va.  360. 

oSanborn  v.  Sch.  Dist.,  12  Minn.  17. 
10Wormley  v.  Dist.  Tp.,  45  Iowa,  666. 
11  Sch.  Dist.  No.  1  v.  Bailey,  12  Me.  (3  Fairf.  ) 


CONTRACT,  RATIFICATION. 


51 


building  committee  are  limited  to  the  amount  voted  by  the  dis- 
trict.1 

§  41.  Contract,  ratification. — Where  the  inhabitants  of  a 
district,  in  a  suit  for  building  school-house,  repudiated  the  agree- 
ment alleged,  denying  that  it  had  been  accepted  by  them,  though 
executed  by  the  plaintiff,  and  it  was  proved  that  the  district 
agreed  to  build  the  house,  raised  money  for  the  purpose,  chose 
a  committee  to  superintend  the  building,  and  said  committee 
and  the  inhabitants  had  seen  the  work  advance,  without  any 
objection,  the  inhabitants  of  the  district  were  liable  to  pay  what 
the  house  was  reasonably  worth,  though  not  built  agreeably  to 
the  special  agreement.8  The  vote  of  electors  directing  settle- 
ment of  disputed  claim  growing  out  of  contract  is  a  ratification 
though  originally  the  board  of  directors  exceeded  their  powers  ;3 
and  the  board  of  education  can  legalize  and  confirm  the  acts  of 
de  facto  school  officers,  under  a  law  which  is  declared  invalid.* 
There  is  an  implied  liability  on  part  of  district  to  reimburse  a 
de  facto  committee  for  boarding  teacher  and  for  material  fur- 
nished, when  district  did  not  object,  though  the  district  had 
voted  to  have  the  teacher  board  around,5  and  school  districts 
like  individuals  are  liable  for  money  had  and  received  ;6  so  where 
district  accepted  benefit  of  contract  made  by  prudential  commit- 
tee de  facto,  it  was  held  there  was  an  implied  promise  to  pay.7 

§42.  Contract,  ratification. — The  court  says,  in  School 
Town  of  Milford  v.  Powner,  Ind.,  26  N.  W.  485  :  "The  con- 
tract of  employment  is  assailed  as  invalid  on  the  further  ground 
that  it  never  received  the  concurrent  action  of  the  school  board 
as  a  body,  but  was  acted  upon  and  signed  by  the  trustees  sep- 


i  Wilson  v.  Sch.  Dist.,  32  N.  H.  118;  Harris  v. 

Sch.  Dist.,  28  N.  H.  (8  Post.)  58. 
2Norris  v.  Sch.  Dist.,  12  Me.  (3  Fairf.  )  293. 
a  Everts  v.  Dist.  Tp.,  77  Iowa,  37. 


*Dubuque  &c.  Coll.  v.  Dubuqne,  13  Iowa,  555. 
SRowell  v.  Tunbridge  Sch.  Dist.,  59  Vt.  658. 
•Trustees  v.  Trustees,  81  111.  470. 

v.  Sch.  Dist.,  (Vt.)  10  A.  754. 


52  PUBLIC   SCHOOL   LAW. 

arately  and  severally.  It  is  undoubtedly  true  that  the  indi- 
vidual members  of  a  school  board,  acting  separately,  cannot 
legally  employ  a  teacher,  nor  can  they  make  any  other  contract 
binding  upon  the  corporation.  The  statute  requires  that  they 
shall  meet  within  five  days  after  they  are  elected  and  organize 
by  electing  one  of  their  number  as  president,  one  as  secretary, 
and  one  as  treasurer;  and  they  are  required  to  keep  a  record 
of  their  proceedings  relative  to  the  schools.  The  individuals 
composing  the  board  have  no  power  to  act  so  as  to  bind  the 
corporation,  except  when  they  are  convened  as  a  board ;  and 
any  contract  made  by  them  when  not  thus  convened,  unless  it 
is  afterwards  freely  approved  and  confirmed  when  legally  in  ses- 
sion, is  not  valid.  (Board  v.  Chitwood,  8  Ind.  504 ;  Ohio  v.  Treas- 
urer, 22  Ohio  St.  144 ;  Hazm  v.  Lerche,  47  Mich.  626.)  Nor 
can  the  members  of  a  board,  by  any  prearrangement  or  contract 
entered  into  when  not  in  session,  bind  themselves  afterward  to 
ratify  or  confirm  any  contract  or  engagement  thus  entered  into. 
(McCortle  v.  Bates,  29  Ohio  St.  419.)  There  was  evidence 
which  tended  to  show  that  the  plaintiff  and  one  of  the  trustees 
signed  the  contract  at  a  time  when  the  school  board  was  not  in 
session.  Afterwards,  at  a  special  session  of  the  board,  the  con- 
tract of  employment  was  approved  and  signed  by  one  of  the 
other  members,  and  the  proceedings  of  the  meeting,  the  em- 
ployment of  the  teacher  and  the  approval  of  the  contract  were 
duly  entered  of  record.  As  applicable  to  the  evidence  upon 
this  point,  the  court  stated  the  law  correctly  to  the  jury  in  a 
charge  in  which  they  were  told,  in  effect,  that  if  the  plaintiff 
and  one  of  the  members  of  the  board  signed  the  contract  before 
the  meeting  on  April  26, 1886,  and  at  a  called  meeting  the  con- 
tract was  adopted  by  the  board  and  signed  by  another  member, 


CORPORATION. 


53 


it  became  binding  upon  the  corporation.  ( City  of  Logansport  v. 
Dykeman,  116  Ind.  15.)  " 

§43.  Corporation. —  Incorporated  township  for  common- 
school  purposes,  is  a  quasi  public  corporation ;  the  legislature 
may  modify  or  change  its  powers.1  By  act  of  1875,  Ark.,  a 
district  may  sue  and  be  sued  ;2  but  a  school  district  is  only  a 
quasi  corporation,  and  not  included  in  §  1,  art.  12,  §  IT,  art.  2, 
of  constitution  of  Kansas,  in  regard  to  special  legislation,  and 
art.  12  applies  only  to  corporations  proper  in  Kansas.8  The 
board  of  education  in  111.  may  act  by  agent,  and  it  is  not  neces- 
sary to  have  seal  for  the  agent  to  make  a  contract.*  The  Mis- 
souri acts  relating  to  boards  of  education  and  school  districts 
do  not  apply  to  those  incorporated  under  special  acts.5  School 
districts  and  boards  of  education  are  not  corporations  in  Ohio 
within  the  provisions  of  const.,  art.  13,  §  I.6  Changing  the 
name  of  the  district  is  not  a  change  of  corporate  character  of 
the  district,  nor  a  change  in  the  relations  of  parties  dealing  with 
it.7  Where  districts  were  established  in  Mass,  under  act  of  1789, 
but  not  by  geographical  division,  they  were  not  made  districts 
by  act  of  1817.8  School  townships  are  not  municipal  corpora- 
tions in  their  nature  or  purpose,9  and  school  districts  are  not 
strictly  municipal  corporations,  but  territorial  divisions  having 
many  of  the  attributes  of  a  corporation  ;10  they  are  only  quasi 
corporations,  and  can  exercise  no  powers  except  those  specially 
conferred  by  statute.11  Trustees  of  school  districts  are  public 
corporations  to  be  controlled  by  the  legislature.13 


i  Bush  v.  Shipman,  5  111.  186. 

«  Sch.  Dist.  v.  Bodenhamer,  43  Ark.  140. 

»  Beach  v.  Leahy,  11  Kas.  23. 

*Bd.  Ed.  v.  Greenbaum,  39  111.  609. 

e  State  v.  Vaughn  ( Mo. )  12  S.  W.  507. 

8  State  v.  Powers,  38  Ohio  St.  54. 

TRobbins  v.  Sch.  Diet.,  10  Minn.  340. 

•Fry  v.  Sch.  Dist.,  4  Cush.  (Mass. )  250. 


•  People  v.  Sch.  Trs.,  78  111.  136. 
i°Wharton  v.  Sch.  Dirs.,  42  Pa.  St.  358. 
"Rapelye  v.  Van  Sickler,  1  Edm.  (N.  Y.)  Sel. 

Gas.  175;  Sch.  Dist.  v.  Thompson,  5  Minn. 

280;    Littlewort  v.  Davis,   50  Miss.  403; 

Sch.  Dist.  No.  3  v.  Macloon,  4  Wis.  79. 

rs.  of  Schools  v.  Tatman,  13111.  27;  State 

v.  Hulin,  2  Ore.  306. 


54 


PUBLIC   SCHOOL   LAW. 


§  44.  Crime. — Party  can  be  punished  for  disturbing  private 
school  taught  in  a  district  school-house.1  Where  indictment 
avers  neglect  to  maintain  school  for  three  years  in  succession, 
and  there  is  a  verdict  of  guilty,  no  certain  penalty  can  be  in- 
flicted under  Mass.  Kev.  Stat,  ch.  23,  §  60,  and  a  motion  in  ar- 
rest of  judgment  will  be  sustained.2  In  Conn,  it  is  a  crime  to 
disturb  any  district,  public,  private  or  select  school  while  in  ses- 
sion, and  this  applies  to  a  singing-school.3  In  Mass,  it  is  an 
offense  at  common  law  to  violently  disturb  a  town  meeting.4 
So  in  Pa.,  any  malicious  disturbance  of  a  meeting  of  school  di- 
rectors, lawfully  assembled,  is  a  crime.5 

§45.  District  alteration. — (See  also  "District  Boundary 
Organization.")  Under  Ark.  Laws,  §75,  acts  1887,  p.  286,  it 
is  not  necessary  that  the  petition  should  be  signed  by  a  majority 
of  the  electors  of  each  of  the  districts  to  be  divided.6  Under 
notice  to  district  and  warning  to  town  meeting  for  annexation 
of  adjoining  dfstrict  in  Conn.,  where  the  town  meeting  refused 
the  change,  but  on  appeal  the  court  decreed  that  a  part  only 
should  be  annexed,  the  decree  was  not  error,7  and  a  setting 
aside  action  of  town  in  dividing  school  district  by  appellate 
court,  but  making  no  further  order,  does  not  preclude  the  town 
from  further  altering;8  but  a  petition  by  a  majority  of  citizens 
in  district  to  be  affected  by  change  in  the  boundaries  of  district, 
is  a  condition  precedent  to  formation  of  new  district  by  county 
superintendent  of  Dakota.9  The  act  of  1889,  111.,  annexing 
municipalities  to  others,  gives  the  enlarged  city  the  legal  title 
to  the  property,  and  imposes  on  it  the  school  debt  of  added 


1  State  v.  Leighton,  35  Me.  195 ;  State  v.  Yager, 

26  Conn.  607. 
»  Commonwealth  v.  Sheffield,  11  Cash.  ( Mass.) 

178. 

•State  v.  Yager,  26  Conn.  607. 
*  Com.  v.  Hoxey,  16  Mass.  385. 
6  Campbell  v.  Com.,  59  Pa.  St.  266. 


«Hudepeth  v.  Walllg  (Ark. )  15  S.  W.  184. 
f  Gravel  Hill  Sch.  Diet.  v.  Old  Sch.  Diet.,  55 

Conn.  244. 
8  Sixteenth   Sch.   Dist.  v.  E.  Sch.  Diet.,  54 

Conn.  50. 
•Dartmouth  S.  Bk.  v.  Sch.  Diet.,  6  Dak.  C,.'^. 


DISTRICT  ALTERATION.  55 

territory,1  and  when  municipalities  had  been  annexed  to  cities 
before  passage  of  act  giving  boards  of  education  of  cities  of 
100,000  inhabitants  control  of  public  schools,  they  are  under 
control  of  same,  though  not  mentioned  in  the  act.1  A  map  and 
a  list  of  tax-payers  in  the  newly-arranged  district  must  be  filed 
in  the  county  clerk's  office ;  this  provision  of  the  statute  is  man- 
datory in  111.2  Under  the  law  of  1877,  a  petition  for  a  change 
of  a  district  must  aver  that  the  petitioners  constitute  two-thirds 
of  the  legal  voters  of  the  territory,  and  that  the  district  from 
which  they  wish  to  be  severed  has  no  bonded  debt.2  When  the 
old  district  is  extinguished,  if  they  fail  to  apportion  its  indebt- 
edness and  lay  it  upon  the  new  organizations,  the  old  district 
will  continue  in  existence  to  enforce  its  liabilities,  and  service 
upon  those  who  were  directors  at  the  time  of  the  change  will 
be  good.3  The  legality  of  alteration  cannot  be  questioned  col- 
laterally on  an  application  for  judgment  for  school  taxes,  but 
must  be  tested  by  quo  warranto  against  the  directors,*  and  the 
courts  will  not  interfere  in  altering  districts  except  in  cases  of 
gross  injustice.5  A  bill  in  chancery  filed  by  a  creditor  against 
the  district  into  which  the  debtor  district  had  become  consoli- 
dated will  not  lie,  the  remedy,  if  any,  being  at  law.6  Entering 
the  funds  distributed  to  a  new  school  district,  in  111.,  to  the 
credit  of  such  district  by  the  treasurer  of  board  of  trustees,  is 
not  condition  precedent  to  the  organization  of  the  new  district  ;7 
and  where  the  record  shows  that  the  board  met  for  the  purpose 
of  appraising  and  distributing  school  property  and  funds  conse- 
quent upon  the  formation  of  a  new  district,  but  does  not  state 
who  made  the  appraisement,  it  will  be  presumed  that  it  was 
made  by  the  board  of  trustees.7 


iMcGurn  v.  Bd.  Ed.   (111.)  24  N.  E.  529; 

Cravener  v.  Bd.  Ed.,  id.  532. 
2  Potter  v.  Sch.  Trs.,  10  111.  App.  343. 
»  Rudders  v.  People,  68  111.  154. 
4  People  v.  Newberry,  87  111.  41. 


*Dirs.  v.  Trs.,  66  111.  247;  Metz  v.  Trustee,  66 

111.  247. 

«Sch.  Dirs.  v.  Miller,  54  111.  338. 
7  Sch.  Dirs.  v.  Sch.  Dirs.,  73  111.  249. 


56 


PUBLIC   SCHOOL   LAW. 


§46.  District  alteration. — (111.)  Where  the  old  districts 
refuse  to  pay  over  the  funds  to  the  treasurer  of  the  new,  and 
the  board  of  trustees  neglect  to  compel  such  payment,  the  rem- 
edy is  by  a  bill  in  chancery  to  compel  the  collection  and  the  ap- 
plication of  the  fund.1  The  failure  to  show,  in  the  petition,  that 
the  district  to  be  divided  has  no  bonded  debt,  and  that  the 
boundary  of  the  new  is  not  nearer  than  one  mile  to  a  school- 
house,  and  that  it  is  signed  by  all  the  voters  of  the  new  district, 
and  that  such  district  contains  not  less  than  five  families,  is  fatal.2 
Until  the  township  trustees  shall  make  a  division  of  the  prop- 
erty, each  district  is  bound  to  pay  its  debts  ;3  and  where  a  district 
is  formed  from  another  the  latter  may  sue  in  equity  to  recover 
as  trustee  of  the  former,  money  or  property  coming  to  former.4 
Where  directors  retain  possession  of  a  house  on  land  which  has 
been  detached  to  form  a  new  district,  and  continue  to  levy  taxes 
on  the  detached  territory,  and  the  school  trustees  refuse  to  sell 
such  house,  a  court  of  equity  will  grant  relief  from  such  acts, 
at  the  suit  of  the  directors  and  tax-payers  residing  in  new  dis- 
trict.5 

§47.  District  alteration. — (Ind.)  If  the  boundary  of  a 
district  is  changed  conformably  to  a  legal  petition,  the  conse- 
quent alteration  of  the  adjoining  district  is  valid  without  peti- 
tion therefor.6  Under  1st  Rev.  Stat.,  p.  780,  §  4,  real  estate 
conveyed  to  a  school  township,  and  paid  for  by  it,  remains  its 
property,  although  included  in  territory  afterwards  annexed  to 
adjoining  city.7 

§48.  District  alteration. — (Iowa.)  Certain  territory  of  the 
independent  school  district  of  Y.  was  set  apart  by  resolution  of 


iSch.  Dirs.  v.  Sch.  Dirs.,  73  111.  249. 

2  Sch.  Trs.  v.  Ball,  71  111.  559. 

»Sch.  Diet.  v.  Miller,  49  111.  495. 

•*  Sch.  Dist.  v.  Sch.  Diet.,  16  111.  App.  651. 


5 Sch.  Dirs.  v.  Sch.  Dirs.,  (111. )  28  N.  E.  49. 
«  Nutter  v.  Trs.  &c.,  4  Blackf.  ( Ind. )  351. 
*  Reckert  v.  Peru,  60  Ind.  473. 


DISTRICT  ALTERATION. 


57 


the  electors  to  "all  parties  interested  desiring  to  form  a  new 
school  district,"  and  certain  territory  of  district  township  of  C. 
was  set  off  by  its  board  of  directors  for  the  same  purpose ;  this 
combined  territory  applied  to  the  independent  district  of  L.  for 
admission ;  the  district  township  of  C.  brought  suit  to  restrain 
independent  district  of  L.  from  exercising  control  over  the  terri- 
tory ;  it  was  held  that  the  action  of  electors  of  independent  dis- 
trict of  Y.  was  illegal,  and  that  never  having  been  legally  detached 
from  independent  district  of  Y.,  the  district  township  of  C.  could 
not  maintain  an  action  to  have  it  declared  part  of  its  territory.1 
In  an  action  by  an  independent  district  to  compel  board  of  di- 
rectors of  a  district  township  to  take  action  on  its  proposition 
to  change  boundaries,  that  the  independent  district  is  co-exten- 
sive with  a  village  does  not  deprive  it  of  the  benefits  of  the  act. 
{Code,  §  1809.)2  When  a  part  of  one  district  is  attached  to  an- 
other, the  boards  of  directors  of  the  two,  or  arbitrators  chosen 
by  them,  have  power  to  apportion  the  assets ;  and  their  juris- 
diction is  exclusive,3  and  it  is  only  upon  their  failure  to  agree 
that  the  disputes  are  to  be  referred  to  arbitrators.*  An  appeal 
will  lie  from  their  adjudication  to  the  county  superintendent, 
whose  decision  is  binding.*  The  court  on  arbitration  in  Iowa 
on  division  of  assets  where  district  is  divided,  (Code,  §§  1715, 
5416,  3431,)  must  render  same  judgment  as  the  award.5  The 
boards  of  directors  of  independent  school  districts  have  no 
power  to  change  the  boundaries;  such  changes  can  only  be 
made,  if  at  all,  by  the  county  superintendent,  under  the  joint 
provisions  of  Code,  §§  1797-1806  ;6  and  concurrent  action  of 
boards  of  directors  of  both  townships  is  necessary  before  an  in- 


JDist.  Tp.  of  Center  v.  Ind.  Disk  Lansing, 

( Iowa )  47  N.W.  1033. 

2 Ind.  Diet.  v.  Dist.  Tp.,  (Iowa)  47  N.  W.  1030. 
*Uist.  Tp.  v.  Dist.  Tp.,  45  Iowa,  104. 


4  Ind.  Sch.  Dist.  of  Lowell  v.  Ind.  Sch.  Diet. 

of  Duser,  45  Iowa,  391. 
6  Little  Sch.  Dist.  Tp.  v.  Little  Sch.  Ind.  Dist., 

60  Iowa.  616. 
«Eason  v.  Douglass,  55  Iowa,  390. 


58  PUBLIC  SCHOOL  LAW. 

dependent  district  lying  within  the  limits  of  two  district  town- 
ships can  be  deprived  of  its  territory.1  Where  no  written 
request  was  made  to  call  a  meeting  for  an  election  upon  the 
consolidation  of  independent  district  with  another,  and  no  call 
was  made  at  a  proper  meeting  of  the  board,  there  could  be  no 
legal  consolidation,  Code,  §  1811  ;2  and  under  §  1797,  Code,  a. 
county  superintendent  cannot  divide  district  and  annex  the  part 
to  another  unless  on  account  of  natural  obstacles  that  prevent 
attendance,  and  if  the  order  is  void  a  legislative  sanction  subse- 
quently will  not  divert  the  taxes.3  Before  1866,  a  transfer  from 
one  township  was  unauthorized,  unless  it  was  made  because  of 
reason  of  natural  obstacles/  The  treasurer  in  refunding  an  ille- 
gal tax  under  Code,  §  870,  should  apportion  the  amount  between 
the  districts  occupying  the  territory  from  which  it  was  collected.5 
A  portion  of  township  A  was  annexed  to  township  B,  a  war- 
rant executed  by  the  A  to  the  B,  in  consideration  that  the  A 
should  be  entitled  to  receive  all  the  taxes,  was  valid.6  The  re- 
moval of  an  old  school-house  to  make  place  for  a  new  one,  does 
not  disorganize  a  district  composed  of  territory  in  different 
townships.7  The  apportionment  by  the  directors  of  assets  and 
liabilities  cannot  be  attacked  collaterally.8  The  law  does  not 
limit  the  extent  of  territory  which  may  be  added  to  a  town  or 
city  district  for  school  purposes  ;9  and  where  two-thirds  of  the 
electors  of  territory  that  had  been  detached  from  one  district 
and  attached  to  an  independent  district  petition  for  its  restora- 
tion, which  is  refused  by  the  independent  district,  the  remedy 
is  by  appeal  and  not  mandamus.10  Under  Code,  §  1798,  tha 


1  Ind.  Diet,  of  Fairview  v.  Durland,  45  Iowa, 

53. 

»  State  T.  Leverton,  53  Iowa,  483. 
»Ind.  Diet.  v.  Ind.  Dist.,  62  Iowa,  616. 
4  Troy  v.  Doyle,  53  Iowa,  667. 
*  Spencer  v.  Riverton,  56  Iowa,  85. 


6  Wesley  v.  Algona,  52  Iowa,  153. 

?  State  v.  McCormick,  37  Iowa,  142. 

8 Ind.  Dist.  v.  Ind.  Dist.,  45  Iowa,  391 :  43  id. 

444. 

»  Fort  Dodge  v.  Wahkansa,  15  Iowa,  434. 
WBarnett  v.  Ind.  Diet.,  (Iowa)  34  N.  W.  780- 


DISTRICT   ALTERATION. 


boundaries  of  an  independent  district  might  be  changed  in  the 
same  way  as  where  territory  had  been  afterwards  attached  ;x  and 
the  extension  of  limits  of  a  town  does  not  necessarily  enlarge 
the  district  therein.2 

§49.  District  alteration.  —  (Kas.)  Board  of  education  of 
city  of  second  class  may  attach  adjacent  territory  in  Kansas,, 
and  notice  to  the  district  affected  is  not  a  condition  precedent 
where  majority  of  electors  of  such  territory  apply  ;8  and  appor- 
tionment of  school  property  is  valid,  though  not  made  for  seven 
months  after  new  district  was  formed.4  School  district  admit- 
ting liability  for  property  obtained  by  division  of  district  may 
be  compelled  to  pay  by  mandamus  ;5  and  a  petition,  stating 
county  superintendent  ordered  district  to  pay  sum  for  retaining 
property  on  organization  of  district,  held  good.5  It  is  not  nec- 
essary to  prove  that  school  district  had  notice  of  superintend- 
ent's action  in  directing  it  to  pay  for  property  on  division  of 
districts.5  Where  there  is  no  provision  for  compensation,  and 
a  district  is  divided  by  extension  of  city  limits,  and  the  city 
claims  the  building  on  the  ground  annexed,  without  making 
any  compensation  therefor,  and  the  officers  of  the  district  pre- 
vent such  control,  the  original  district  should  retain  control  of 
the  school-house  until  some  arrangement  is  made  for  adjust- 
ment of  the  property  rights.6  Where  the  territory  detached 
was  not  organized  or  placed  in  any  other  district  for  one  year,. 
an  award  made  about  three  years  thereafter,  that  the  old  dis- 
trict shall  pay  the  new  the  value  of  the  property  retained,  is- 
binding.7 

§  50.   District  alteration.  —  (Me.)  Where  two  new  districts. 


i  Albin  v.  West  B.  I.  S.  D.,  58  Iowa,  77. 
'State  v.  Ind.  Diet,  46  Iowa,  425. 
«  Sch.  Dist.  v.  Board,  16  Kas.  536. 
*  Sell.  Dist.  v.  State,  15  Kae.  43. 


»  Sch.  Dist.  v.  Sch.  Dist.,  90  Kas.  76. 
«Bd.  Ed.  v.  Sch.  Dist.,  45  Kas.  560. 
7  Sch.  Dist.  v.  Sch.  Dist.,  32  Kas.  123. 


PUBLIC   SCHOOL   LAW. 


-are  formed  from  an  old  one,  'the  title  to  the  school-house  is  in 
the  district  within  which  it  falls  ;*  and  if  a  town  in  dividing  a 
.school  district  includes  that  which  it  is  not  authorized  to  do  by 
the  warrant,  a  mere  stranger  cannot  therefore  avoid  the  whole 
proceedings.1  It  is  not  illegal  for  a  town,  in  reconstructing  its 
districts,  to  make  its  action  depend  on  the  wishes  of  the  districts 
to  be  affected.2  Where  by  a  change  in  the  district  line  the 
school-house  is  left  out  of  the  district  in  Me.,  the  district  still 
owns  the  building,  and  may  authorize  an  agent  to  remove  the 
same.3  Eev.  Stat.  1857,  ch.  11,  §  26,  authorizing  school  dis- 
tricts to  unite  without  the  action  of  the  town,  is  not  repealed 
by  the  act  of  1854,  ch.  104,  §  1,  which  provides  that  towns  may 
-determine,  etc.,  so  far  as  to  invalidate  a  union  made  under  the 
former  statute,  although  after  the  passage  of  the  latter.*  A  dis- 
trict in  Me.  cannot  be  divided  by  town  vote  unless  selectmen 
have  submitted  written  statement  required  by  law  ;5  and  towns 
cannot  form  new  school  districts  from  adjoining  without  co- 
operating and  giving  due  notice  to  all.6  A  recital  in  a  report 
of  the  selectmen  and  school  committee  that  a  division  would 
not  be  desirable  if  its  inhabitants  could  agree  to  it,  yet  the  feel- 
ing existing  was  such  as  to  require  the  division,  is  a  sufficient 
*'  statement  of  facts;"7  and  a  vote  passed  at  an  annual  meeting 
as  required  is  not  invalidated  by  the  fact  that  the  report  had 
also  previously  been  made  at  a  special  town  meeting.7  The 
vote  of  a  town  to  discontinue  one  district  and  to  annex  it  to 
others,  is  not  void  because  of  an  omission  to  make  any  pro- 
vision about  the  disposition  of  the  school-house.8  Under  K.  S., 
ch.  11,  §  1,  requiring  the  recommendation  of  the  municipal  au- 


i  Whitmore  v.  Hogan,  22  Me.  564. 


oga 
mb, 


v.  Titcomb,  31  Me.  272. 
Whittier  v.  Sanborn,  38  Me.  32. 
*  Call  v.  Chadbourne,  46  Me.  206. 
.  Disk  v.  Stearns,  48  Me.  568. 


« Butterfield  v.  Inhabitants  of  Sch.  Dist  No. 

6,  61  Me.  583. 

*  Webber  v.  Stover,  62  Me.  512. 
8  Grindle  v.  Sch.  Dist.  No.  1,  64  Me.  44. 


DISTRICT   ALTERATION.  61 

thorities,  it  is  not  necessary  that  such  recommendation  should: 
indicate  the  exact  change  to  be  made.1  Where  three  districts* 
were  added  to  fourth,  a  vote  to  reconsider  was  legalized  by  act 
of  legislature  ;2  but  where  district  had  been  annexed  by  vote  of 
town,  it  could  not  be  reconsidered  except  by  recommendation 
of  town  and  school  officers.2  A  vote  to  set  off  the  inhabitants 
of  School*  District  No.  22  with  their  estates,  and  annex  the 
same  to  School  District  No.  9,  as  recommended  by  the  muni- 
cipal officers  and  supervisors  of  schools,  is  sufficiently  certain.2 

§51.  District  alteration. — (Mass.)  A  town  in  altering  a 
district  has  no  power  to  destroy  the  district  corporation  without 
its  consent,  nor  so  as  to  impair  its  contracts;3  and  a  town 
defined  an  east  and  a  west  district  by  lines,  and  then  assigned 
certain  children  to  certain  schools,  and  all  other  inhabitants  to- 
the  center  district  of  the  town ;  this  was  invalid.*  When  ai 
town  abolishes  the  old  districts,  the  legal  title  to  the  school- 
houses  rests  in  the  new  districts  within  whose  territory  they 
fall.5  Where  the  vote  to  accept  the  report  of  the  committee 
dividing  the  district  filed  is  recorded,  it  is  not  necessary  to  re- 
cord the  report  ;6  and  where  the  town  voted  at  a  meeting  on 
the  1st  of  March  to  accept  report  of  committee  dividing  district,, 
and  recommitted  it  to  the  same  committee  "for  the  purpose  of 
setting  up  the  bounds  and  monuments,"  and  the  committee  about 
a  week  afterward  returned  to  the  town  clerk  a  report  of  their 
making  said  four  districts  into  three,  "as  per  vote  of  the  town 
March  1st,"  and  the  clerk  forthwith  recorded  it,  said  three  dis- 
tricts were  legally  established.7  Establishing  bounds  for  exist- 
ing districts  by  a  town  is  not  a  districting  anew  within  acts 


1  Grindle  v.  Sch.  Diet.  No.  1,  64  Me.  44. 

2  Parker  v.  Titcomb,  82  Me.  180. 

» Waldron  v.  Lee,  5  Pick.  ( Mass. )  323. 
*  Perry  v.  Dover,  12  Pick.  (Maes.)  206. 


oSch.Dist.v.Tapley,  1  Allen(Mass.)49;  Stone- 
ham  v.  Richardson,  23  Pick.  ( Mass.)  62. 

6  Howard  v.  Stevens,  3  Allen  ( Mass. )  409. 

7  Alden  v.  Rounseville,  7  Mete.  (Mass.)  218. 


•G2 


PUBLIC   SCHOOL   LAW. 


1849  and  1851.1  Where  town  in  setting  off  a  person  to  an- 
other district  omitted  "and  his  estate,"  it  is  invalid.2  No  town 
is  to  be  redistricted  anew  under  act  1849,  so  as  to  change  tax- 
ation of  land  into  districts  using  different  school-houses,  more 
than  once  in  ten  years.8  Where  town  was  divided  into  five 
districts,  and  in  1853  by  selectmen  into  five  new  districts,  in 
1855  there  was  a  vote  to  abolish  the  district  lines,  and  in  1856 
.a  vote  to  divide  the  town  into  five  districts  as  in  1852,  and 
then  a  vote  to  reconsider  this  so  as  to  form  three  of  the  districts 
in  one,  and  then  a  vote  to  adopt  the  boundaries  made  by  the 
.selectmen,  the  three  did  not  then  constitute  one  district.*  A 
town  may  form  new  school  districts,  or  alter  the  limits  of  or 
subdivide  any  of  the  existing  districts,  without  changing  all  the 
districts.5  Stat.  1849,  ch.  206,  and  1851,  ch.  303,  forbidding  the 
redistricting  oftener  than  once  in  ten  years,  do  not  prevent  towns 
from  abolishing  all  school  districts.6  A  town  voting  to  unite 
two  of  its  school  districts  is  so  "districted  anew,"  in  the  sense 
of  Gen.  Stat.,  ch.  39,  §  25,  that  a  non-resident  previously  taxed 
in  one  of  the  old  cannot  be  taxed  in  the  new  without  a  new 
certificate  of  the  assessors.7  A  statute  imposing  upon  towns 
the  debts  of  abolished  school  districts  is  constitutional  ;*  and 
Gen.  Stat.,  ch.  39,  §  3,  and  Stat.  1869,  ch.  110,  425,  abolishing 
school  districts,  are  not  unconstitutional;  they  do  not  impair 
the  obligation  of  contracts.9 

§52.  District  alteration. — (Mich.)  The  action  of  board 
inspectors  in  Mich,  in  detaching  territory  from  two  districts  and 
adding  same  to  third,  is  valid  where  proper  notice  was  given, 
even  though  all  done  at  one  meeting,  and  a  writ  of  certiorari 


1  Adams  v.  Crooks,  7  Gray,  ( Mass. )  411. 
2Nye  v.  Marion,  7  Gray,  ( Mass. )  244. 

-  Gustin  v.  Sch.  Dist.,  10  Gray,  ( Mass. )  85. 

*  lilankenship  v.  Hadley,  11  Gray,(Mass.)431. 
-5  Richards  v.  Dagget,  4  Mass.  534. 


«Mendell  v.  Marion,  82  Mass.  (16  Gray)  353. 
*  Bacon  v.  Sch.  Dist.  No.  13,  97  Mass.  421. 
8  Whitney  v.  Stow,  111  Mass.  368. 
9Rawson  v.  Spencer,  113  Mass.  40. 


DISTRICT  ALTERATION. 


63 


will  not  lie  unless  the  action  of  the  board  practically  destroys  a 
district.1  Where  ten  days'  notice  has  not  been  given  of  forma- 
tion of  new  district,  it  cannot  be  thereafter  affirmed  by  written 
consent  of  majority  of  citizens  affected.2  A  return  by  the  board 
of  inspectors  that  the  parties  consenting  to  division  are  a  ma- 
jority of  resident  tax-payers,  is  conclusive  evidence  ;8  and  six 
years'  acquiescence  in  division  of  district  estops  the  parties  from 
attacking  same.3  Where  a  district  did  not  contain  more  than 
nine  sections,  it  is  legal  although  it  contains  five  full  sections 
and  eight  fractional  sections.*  Where  the  notice  for  alteration 
of  district  shows  how  it  affects  contiguous  districts,  but  does  not 
specifically  name  those  affected,  it  will  be  valid.6  The  town- 
ship clerk  in  Mich,  is  a  school  inspector,  and  his  signing  of  no- 
tice for  alteration  of  a  district  boundary,  as  clerk  of  the  board 
of  school  inspectors,  is  a  compliance  with  the  statute.6  A  school 
district  may  enjoin  an  illegal  apportionment  of  debt,6  and  where 
the  inspectors  of  the  old  district  apply  to  the  board  of  super- 
visors to  have  the  sum  apportioned  to  that  district  spread  upon 
its  taxable  property  without  giving  the  notice  required,  the  tax 
is  illegal.6  Proof  of  notice  for  meeting  of  township  board  of 
school  inspectors  must  be  filed  with  clerk  of  board  before  bound- 
aries of  district  are  to  be  altered  ;7  and  a  township  board  has 
jurisdiction  of  appeal  from  decision  of  school  inspectors  appor- 
tioning liability  on  division  of  districts.8  Township  school  in- 
spectors cannot  enlarge  a  graded  -  school  district  by  adding 
unorganized  territory,  though  they  may,  with  the  consent  of 
the  trustees,  transfer  to  its  jurisdiction  primary  districts  ;9  and 
where  a  school  district  is  divided  among  three  other  existing 


iDoxey  v.  Tp.  Bd.  Sch.  Insp.,  (Mich.)  35  N. 
W.  170. 

2  Gentle  v.  Bd.  Insp.,  ( Mich. )  40  N.  W.  928. 

3  Sch.  Dist.  v.  Union  Sch.  Disk,  ( Mich. )  45 

N.  W.  993. 
*  People  v.  Gartland,  ( Mich. )  42  N.  W.  687. 


«Donough  v.  Hollister,  82  Mich.  309. 
e  Sch.  Dist.  v.  Sch.  Dist.,  63  Mich.  51. 
'•  Coulter  v.  Sch.  Insp.,  59  Mich.  391. 
8  <  'aimon  v.  Wilcox,  48  Mich.  404. 
9Simpkins  v.  Ward,  45  Mich.  559. 


64 


PUBLIC   SCHOOL  LAW. 


districts,  the  latter  cannot  be  held  jointly  for  a  debt  of  the 
former  district ;  whatever  they  are  bound  to  pay  must  be  a  sev- 
eral and  not  a  joint  obligation.1  The  board  of  school  inspectors 
had  no  authority  to  dissolve  the  school  district  numbered  13 
established  by  the  act  of  Feb.  7,  1S67.2  After  the  incorpora- 
tion of  the  city  of  Saginaw,  the  officers  of  the  township  district 
embraced  in  the  city  claimed  to  be  officers  of  the  School  Dis- 
trict No.  1  of  the  city  of  Saginaw,  and  brought  suit  to  collect 
money  in  this  right,  etc.  Held,  the  city  charter  severed  the 
city  from  the  school  district  of  the  township,  and  the  city  could 
not  recover  its  proportion  of  the  moneys  of  the  school  district 
or  of  its  other  property.8  Under  Laws  1840,  p.  215,  §  25,  the 
school  inspectors  of  any  such  district  may  dissolve  one  organ- 
ized district  and  annex  it  to  another.* 

§53.  District  alteration. — (Minn.)  Where  certain  terri- 
tory was  added  to  city  of  Winona,  Minn.,  by  statute,  it  became 
a  part  of  it  for  school  purposes,  and  as  there  was  no  statutory 
provision,  the  addition  remained  subject  to  all  its  liabilities  and 
retained  its  property,  including  that  which  came  within  the 
city.5  A  village  may  not  withdraw  from  district  at  its  election 
and  by  its  own  action.6  Where  districts  were  divided  before 
the  act  of  1891  applied,  the  old  district  retained  all  the  prop- 
erty and  was  liable  for  all  the  debts  ;7  and  districts  are  under 
control  of  the  legislature,  and  the  property  may  be  transferred 
from  one  to  another.8 

§  54.  District  alteration. — (Mo.)  To  form  a  new  district 
from  part  of  two  existing,  the  assent  of  a  majority  of  each  of 
the  three  is  required.9  Mo.  Sess.  Acts  of  1868,  p.  164,  provid- 


iHalbert  v.  Sch.  Dist.,  36  Mich.  421. 

2  Sch.  Dist.  v.  Dean,  17  Mich.  223. 

»  Saginaw  v.  Sch.  Diet.,  9  Mich.  541. 

*  People  v.  Davidson,  2  Dougl.  (Mich. )  121. 

6 City  Winona  v.  Sch.  Dist.,  40  Minn.  13. 


estate  v.  Ind.  Sch.  Diet.,  42  Minn.  357. 
*  City  Winona  v.  Sch.  Dist.,  40  Minn.  13. 
8  Connor  v.  St.  Anthony  Bd.,  10  Minn.  352. 
»Sayre  v.  Tompkins,  23  Mo.  443. 


DISTRICT   ALTERATION.  65 

ing  for  the  extension  of  school  districts,  applies  to  both  corpo- 
rated  aiid  incorporated  towns.1  Wagner's  Stat.,  p.  1245,  §  IT, 
requiring  a  joint  meeting  of  the  township  boards  of  education 
in  order  to  form  a  sub-district  out  of  territory  in  two  townships, 
is  not  complied  with  by  a  meeting  of  one  board  and  a  unani- 
mous consent  on  paper  by  the  other.2  Territory  embraced  in  a 
school  sub-district,  outside  of  and  adjoining  an  incorporated 
town,  may  be  organized  with  it  for  school  purposes  under  the 
Mo.  school  law,  art.  2,  §  1,  (Wagn.  Stat,  1262.)  A  previous 
"mutual  agreement"  is  unnecessary.  If  after  the  town  sub- 
district  is  organized  it  becomes  desirable  to  have  additional 
territory  from  the  township  annexed,  it  must  be  done  under 
provisions  of  §  IT.3  Where  (Wagn.  Stat,  ed.  18T2,  126T,  §  IT) 
a  township  sub-district  becomes  merged  in  adjoining  town  or 
city,  and  the  board  of  the  municipality  takes  control  of  the 
school  property  of  annexed  district,  the  municipal  board  will 
be  liable  for  contract  made  previously  by  sub-district  board  for 
a  teacher's  salary.*  The  act  of  1868,  p.  164,  §  1,  authorizing 
boards  of  education  to  extend  the  limits  of  the  territory,  is  con- 
stitutional, although  not  requiring  the  consent  of  the  districts 
affected.5  Voting  down  a  proposition  to  organize  the  city  into 
a  separate  school  district  under  Gen.  Stat.  1865,  ch.  4T,  p.  2T4, 
does  not  prevent  its  being  so  organized  afterwards.6  A  resolu- 
tion adopted  by  the  board  of  education  of  a  city,  attaching  ter- 
ritory for  school  purposes,  under  Acts  1868,  p.  164,  §  1,  is  not 
inoperative  till  the  clerk  of  the  board  certifies  to  the  township 
clerk  and  the  latter  acts;7  but  the  resolution  of  July  16,  1869,, 
grants  no  authority  to  detach  territory  which  has  been  attached 


1  State  v.  Heath,  56  Mo.  231. 

2  Smith  v.  Tp.  Bd.  of  Ed.,  58  Mo.  297. 

3  State  v.  Heiser,  60  Mo.  540. 

*  Thompson  v.  Abbott,  61  Mo.  176. 


estate  v.  Miller,  65  Mo.  50. 

6 E wing  v.  Jefferson  City  Bd.  Ed.,  72  Mo.  436. 

7  Henry  v.  Dulle,  74  Mo.  443. 


66 


PUBLIC   SCHOOL   LAW. 


under  the  above  statute.1  Under  act  of  1879  a  district  cannot 
vote  simply  to  withdraw  from  that  part  outside  its  county  with- 
out voting  to  form  a  new  district  or  attaching  itself  to  some 
other  ;2  and  a  county  school  commissioner  can  only  change  the 
boundaries  of  district,  except  as  in  Kev.  St.,  §  7023.3  Though 
Rev.  Stat.  1879,  §  7031,  authorizes  the  annual  meeting  to  change 
boundaries,  "notice  of  such  change  having  been  posted  in 
at  least  five  public  places  in  each  district  affected,"  yet  when 
a  new  district  is  formed  or  other  changes  made  on  petition  of 
ten  qualified  voters,  three  notices  only  in  each  district  are  suffi- 
cient under  §  7023,  requiring  the  directors  of  district  affected 
to  post  a  notice  of  the  desired  change  in  at  least  three  public 
places  in  each  district,  twenty  days  prior  to  the  annual  meeting, 
and  the  voters,  when  assembled,  shall  decide  the  question.*  A 
notice  of  the  proposed  formation  of  a  new  district  need  not  give 
its  boundaries,  but  should  refer  to  the  petition  and  describe  the 
territory  to  be  taken  from  the  district.*  A  notice  signed  by 
the  clerk  of  the  district  in  which  it  is  posted  is  sufficient  under 
Kev.  Stat.  1879,  §  7067,  making  it  his  duty  to  make  copies  of 
election  notices,  and  §  7070,  to  post  notices  required  to  be  given 
of  all  special  meetings.*  Where  officers  attempt  to  carry  out 
void  change  of  district,  they  will  be  compelled  by  mandamus  to 
apportion  funds  correctly  ;5  and  where  change  is  made  without 
required  vote,  it  is  void  ;5  and  territory  cannot  be  taken  from 
one  and  added  to  another  district  until  voted  upon  by  voters  of 
each  district.6  The  statute  of  1879,  in  regard  to  taxing  old  dis- 
trict for  benefit  of  new,  does  not  apply  to  change  of  boundariea 
of  two  old  districts.6 


i  Henry  v.  Dulle,  74  Mo.  443. 
sShattuck  v.  Phillips,  78  Mo.  80. 
•State  v.  Riley,  85  Mo.  156. 


*  Mason  v.  Kennedy,  89  Mo.  23,  ( 14  S.  W.  514. 
6  State  v.  Jnimshaw,  ( Mo. )  1  S.  W.  363. 
«Sch.  Dist.  v.  Sch.  Diat.,  ( Mo. )  7  S.  W.  285. 


DISTRICT   ALTERATION. 


67 


§55.  District  alteration. — (Neb.)  Under  subdivision  3, 
p.  4,  ch.  79,  Comp.  Stat.,  for  a  change  in  the  boundaries  of  two 
school  districts,  it  is  indispensable  that  three  notices,  containing 
an  exact  statement  of  the  proposed  change  and  the  time  when 
the  petition  will  be  presented  to  the  county  superintendent,  be 
posted  in  three  public  places,  one  of  which  places  shall  be  upon 
the  outer  door  of  the  school-house,  if  there  be  one,  in  each 
district  affected,  at  least  ten  days  prior  to  presenting  petition.1 
The  affidavit  of  proof  of  posting  such  notices  should  state  where 
each  of  the  three  was  posted,  and  day  of  posting  same ;  and  in 
a  proceeding  attacking  jurisdiction  of  the  state  superintendent, 
the  time  and  place  of  posting  must  appear,1  and  a  petition  in 
writing  for  that  purpose  is  a  condition  precedent.2  Ten  days' 
notice  must  be  given  of  application  for  division  of  district.2 
Where  consolidated  district  assumed  all  the  debts  of  the  old 
districts,  a  tax  was  properly  levied  on  new  for  payment  of 
bonds  of  one  of  the  old.3 

§56.  District  alteration. — (N.  H.)  The  inhabitants  of  a 
town  voted  to  divide  the  town  into  school  districts,  and  ap- 
pointed the  selectmen  a  committee  to  make  such  division  ;  their 
proceedings  must  be  ratified  by  the  town  to  make  them  legal  ;* 
and  a  division  of  a  town  into  school  districts  must  be  a  terri- 
torial division.6  If  parts  of  two  towns  are  by  the  legislature 
incorporated  into  a  school  district,  one  of  those  towns  cannot 
dismember  such  district.6  A  town  may  unite  two  existing  dis- 
tricts under  an  article  in  the  warrant,  "  to  see  if  the  town  will 
alter  the  boundaries  of  any  of  the  school  districts  in  the  town."7 
Under  act  of  July  4,  1861,  towns  may  be  divided  into  school 


iDooley  v.  Meese,  (Neb. )  48  N.  W.  143. 
»  State  v.  Compton,  ( Neb. )  44  N.  W.  660. 
«Clother  v.  Maher,  15  Neb.  1. 
*Sch.  Dist.  v.  Oilman,  3  N.  H.  168. 


*  Sen.  Dist.  v.  Aldrich,  13  N.  H.  139. 
«Sch.  Dist.  v.  Smart,  18  N.  H.  268. 
f  Converse  v.  Porter,  45  N.  H.  385. 


68  PUBLIC   SCHOOL  LAW. 

districts,  which  may  be  altered  by  vote  of  town  provided  previ- 
ous written  recommendation  of  the  superintendent,  school  com- 
mittee and  selectmen,  etc.,  is  had ;  this  applies  where  all  the 
districts  are  altered  and  the  town  redistricted ;  but  such  recom- 
mendation must  specify  the  alterations  to  be  made,  and  the 
committee  and  selectmen  cannot  delegate  their  powers.1  Per- 
sons and  property  annexed  to  a  school  district  in  an  adjoining 
town  are  subject  to  school-house  taxes  in  the  district  in  which 
they  are  annexed,  and  not  elsewhere.2  The  validity  of  the 
action  of  the  selectmen  and  school  committee  does  not  depend 
upon  the  correct  apportionment  of  the  debts  and  property  of 
the  districts  so  affected.3  Independent  school  districts  exercis- 
ing powers  equal  to  town  district  were  not  affected  by  act  1885.* 
Where  debts  of  district  that  is  abolished  are  less  than  value  of 
property,  they  may  be  paid  by  district  obtaining  the  property.6 
§57.  District  alteration.— (N.  J.)  Under  §41  of  the 
school  law,  an  incorporated  school  district  has  no  right  to  alter 
another  district  without  notice  to  such  district  and  its  consent  ;6 
and  a  certificate  from  the  trustees  and  town  superintendents  to 
the  county  clerk  of  consent  of  inhabitants  to  the  abolition  of 
school  district,  does  not  satisfy  the  statute,  and  will  not  be  re- 
quired by  mandamus,  although  it  has  been  given,  etc.7  The 
town  superintendent,  acting  with  the  trustees  of  an  incorporated 
district,  cannot  join  thereto  another  incorporated  district,8  and 
the  tax  assessed  in  both  districts  will  be  void.9  Until  the  ap- 
pointment of  the  trustees  the  town  superintendent  has  full 
power  to  make  and  alter  school  districts;  but  after  their  ap- 


iNeal  v.  Lewis,  46  N.  H.  276. 

2  Pickering  v.  Colman,  53  N.  H.  424. 

3  Anderson  v.  Carr,  55  N.  H.  452. 

<  Sargent  v.  Union  Sen.  Diet.,  63  N.  H.  528. 
6  Sen.  Diet.  v.  Town  of  Greenfield,  64  N.  H.  84. 


6  State  v.  Browning,  27  N.  J.  L.  ( 3  Dutch. )  527 ; 

State  v.  Deshler,  25  N.  J.  L.  ( 1  Dutch.  177. 
*  State  v.  Jacobus,  26  N.  J.  L.  ( 2  Dutch. )  135. 
8 State  v.  Reeves,  28  N.  J.  L.  (4  Dutch.)  520; 

State  v.  Browning,  28  N.  J.L.  ( 4  Dutch. )  556. 
9  State  v.  Beeves,  28  N.  J.  L.  (4  Dutch. )  520. 


DISTRICT   ALTERATION. 


69 


pointment  they  must  have  had  full  notice.1  Where  the  district  is 
to  be  altered  by  the  town  superintendent  acting  alone  or  with 
the  trustees  with  the  assent  of  a  majority  of  the  legal  voters  of 
the  district,  and  the  certificate  shows  that  districts  have  been 
abolished  by  consent  of  a  majority  of  the  legal  voters  of  the 
districts,  and  is  signed  by  the  superintendent  and  by  two  of  the 
three  trustees  of  each  district,  the  proceeding  is  invalid ;  and 
where  the  board  is  petitioned  to  enlarge  the  district  and  abol- 
ishes the  same,  it  will  be  invalid.2 

§  58.  District  alteration. — (N.  Y.,  &c.)  A  school  commis- 
sioner has  power  to  alter  or  divide  a  union  free-school  district, 
but  must  give  the  trustees  a  week's  notice.3  A  school  commis- 
sioner altered  districts  5  and  7  in  Town  T.,  and  13  in  Towns  T. 
and  B.,  the  trustees  of  7  and  13  consenting,  to  take  effect  im- 
mediately as  to  7  and  13,  and  in  four  months  as  to  5 ;  two 
weeks  after,  he  made  an  order  reciting  at  request  of  trustee  of  5,  i 
he  met  the  supervisor  and  town  clerk  of  T.,  and  then  made  the 
order.  The  town  clerk  of  B.  and  trustees  of  7  and  13  had  no 
notice ;  the  trustee  of  5  attended,  but  without  a  week's  notice ; 
the  alteration  transferred  a  party  from  5  to  13,  and  in  an  action 
by  him  against  a  subsequent  trustee  of  13  to  recover  a  tax  im- 
posed by  13,  the  orders  could  not  be  impeached  collaterally.* 
(N.  C.)  The  county  commissioner  had  no  right  before  an  elec- 
tion authorized  by  statute  had  been  held  in  two  districts  to  es- 
tablish a  graded  school,  to  change  and  alter  the  districts,  and 
the  assessments  imposed  thereafter  were  void.5  (Ohio.)  Where 
property  has  been  set  apart  for  higher  grade  by  township  board 
for  whole  township,  a  division  of  district  could  not  vest  the  title 


i  State  v.  Reeves,  28  N.  J.  L.  (4  Dutch. )  520; 
State  v.Browninsr,  28  N. J.L.  ( 4  Dutch. )  556. 
2 State  v.  Barrett,  31  N.  J.  L.  31. 


8  People  v.  Hooper,  20  N.  Y.  Sup.  Ct.  639. 
4  Rawson  v. Van  Riper,  1  Thomp.C.C.N.  Y.  370. 
6McCorme  v.  Robeson,  Co.  Cik.,  90  N.  C.  441. 


70  PUBLIC   SCHOOL   LAW. 

in  the  new,  although  the  property  may  be  situated  there  at  that 
time  and  the  letter  of  the  statute  implies  that  it  does.1 

§59.  District  alteration.— (O.,  Pa.)  The  school  act  of 
1853  merely  provides  that  what  had  been  districts  should  be 
sub-districts,  with  no  change  in  boundaries,  so  that  an  old  dis- 
trict formed  from  parts  of  two  adjoining  townships  still  con- 
tinues as  one  sub-district.2  A  township  board  of  education 
organized  under  the  law  of  1853  can,  with  the  consent  of  the 
board  of  education  of  a  town  district  of  the  same  township, 
organized  under  act  of  Feb.  21,  1849,  make  transfers  or  annex 
adjacent  territory  to  such  district.3  (Pa.)  A  petition  under  act 
of  1876,  authorizing  court  of  quarter  sessions  to  annex  land  of 
residents  in  one  township  to  another  for  school  purposes,  must 
show  that  the  townships  are  contiguous.4  The  law  in  Pa.  is 
different  as  to  apportionment  of  real  estate  and  schools,  and 
cash  on  hand,  in  the  division  of  districts.5  Where  a  district 
has  been  divided,  and  one  again  divided,  where  there  is  a  con- 
troversy between  the  first  two  as  to  a  division  of  property  and 
liability,  the  third  cannot  intervene  in  that  suit  and  assert  its 
claim  against  district  it  was  created  from.6  The  temporary  con- 
solidation of  schools  in  a  district,  when  reasonably  exercised, 
will  not  be  interfered  with  by  the  courts.6  The  act  of  1854 
extinguished  all  sub-districts  which  had  been  formed  before  its 
passage.7  Where  a  new  school  district  is  carved  out  of  another 
under  act  of  Apr.  11,  1862,  which  provides  that  "the  court 
establishing  the  same  shall  determine  on  hearing  whether  an 
undue  proportion  of  the  property  is  within  the  bounds  of  the 
new  district,"  such  proportion  is  to  be  determined  with  refer- 


iBd.  Ed.  v.  Bd.  Ed.,  (Ohio)  22  N.  E.  641. 
3 Bryant  v.  Goodwin,  9  Ohio  St.  471. 
» Can; on  &c.  School  v.  Meyer,  9  Ohio  St.  580. 
«/«  re  Heidler,  122  Pa.  St.  653. 


6  Aleppo  Sch.  Dist.  v.  Appeal,  96  Pa.  St.  76. 
e  Heard  v.  Sch.  Dirs.,  45  Pa.  St.  93. 
7Conley  v.  Sch.  Dirs.,  32  Pa.  St.  194. 


DISTRICT   ALTERATION. 


71 


ence  to  the  value.1  Where  the  school  taxes  remain  uncollected 
until  after  the  formation  of  a  new  school  district  by  the  erec- 
tion of  a  new  from  an  old  township,  the  new  district  is  entitled 
to  participate  in  the  fund.2 

§60.  District  alteration.— (R  L,  Tenn.)  The  three  vil- 
lages of  G.,  B.  and  H.  were  part  of  the  town  of  S.,  and  organ- 
ized as  independent  districts.  When  they  were  set  off  from  S. 
and  annexed  to  W.  they  retained  their  original  district  organi- 
zation, the  district  of  G.  being  known  as  No.  8,  B.  as  No.  9, 
and  H.  as  No.  10.  At  a  meeting  of  the  school  committee  of 
W.  it  was  voted  "that  district  No.  10,  at  H.,  be  and  it  is  dis- 
continued ;  also,  that  the  boundaries  of  district  No.  9  be  estab- 
lished so  as  to  include  what  formerly  belonged  to  both  Nos.  9 
and  10."  Held,  that  the  school  committee  had  power  to  take 
this  action.3  (Tenn.)  In  Tenn.,  under  acts  1870  and  1873,  the 
county  courts  or  school  directors  have  no  power  to  alter  estab- 
lished school  districts.* 

§61.  District  alteration.— (Tex.,  Utah.)  Established 
school  districts  of  a  county  shall  not  be  changed  unless  by  con- 
sent of  majority  of  valid  voters  in  all  the  districts  affected  ;5  and 
QO  method  being  prescribed  for  determining  the  will  of  the  ma- 
jority, it  is  left  to  the  discretion  of  the  county  commissioners' 
court  ;6  and  under  Laws  1884,  ch.  25,  p.  29,  the  county  commis- 
sioners' court  can  change  the  boundaries  of  existing  districts, 
and  also  divide  a  district  and  establish  in  its  territory  two  or 
more  districts.6  To  a  writ  of  mandamus  to  compel  appointment 
of  trustees,  a  return  is  insufficient  which  states  that  the  relators 
are  seeking  to  control  the  funds  of  the  district  in  the  interest  of 


1  Williams  Tp.  v.  Williamstown.  (Pa.  Quart. 

Sese. )  Pa.  Co.  Ct.  K.  65. 
2 Manchester  v.  Reserve  Tp.,  4  Pa.  St.  35. 
3  Bull  v.  Sch.  Com.,  11  R.  L  244. 


4Rodemerv.  Mitchell  ( Tenn. )  15  S.W.R.1067. 
6  Junction  City  v.  Trs.  Sch.  Diet.  (Tex.)  16  S. 

W.  R.  742. 
«  Porter  v.  State,  78  Tex.  591,  ( 14  S.  W.  794. ) 


72  PUBLIC  SCHOOL  LAW. 

a  private  college,  and  that  if  the  funds  are  apportioned,  school 
could  not  be  maintained  in  one  of  the  new  districts  for  more 
than  four  or  five  months  in  a  year,  whereas  they  could  be  main- 
tained eight  months  before  the  division.1  The  word  "sub- 
divide "  used  in  the  Texas  statutes  in  regard  to  duties  of  county 
commissioners'  court  is  used  with  reference  to  existing  division 
into  counties.8  (Utah.)  The  legislature  has  the  power  in  Utah 
to  consolidate  districts,  even  if  the  tax  should  thereby  be  made 
unequal.3 

§62.  District  alteration.— (Vt.)  A  town  may,  by  vote, 
annex  a  portion  of  its  inhabitants  to  a  district  in  an  adjoining 
town  which  shall  consent  to  receive  them ;  but  the  territory  is 
not  itself  annexed  to  the  district,  as  it  is  in  a  case  where  a  dis- 
trict is  formed  from  territory  belonging  to  two  towns  by  a  con- 
current vote,*  and  the  arrangement  annexing  some  of  the  town's 
inhabitants  to  a  district  is  not  to  be  regarded  as  a  compact,  but 
as  a  mere  license,  and  subject  to  be  revoked  ;*  and  the  town 
may,  by  vote,  resume  its  jurisdiction  over  its  citizens  and  dis- 
solve their  connection  with  the  district  without  the  intervention 
of  a  board  of  three  justices  of  the  peace/  Where  a  town  au- 
thorized a  division  without  defining  the  boundaries  of  the  new, 
it  was  insufficient  to  show  an  organization  of  the  new  district, 
though  the  district  voted  to  divide ;  but  where  a  division  was 
made  and  recorded,  and  the  town  afterwards  ratified  the  same, 
this  rendered  the  division  legal  and  binding  upon  the  inhabitants 
of  the  town  and  district.5  A  warning  "  to  see  if  the  voters  pres- 
ent will  vote  to  set  off"  the  plaintiff  and  six  other  persons 
named  "and  their  real  estate  from  Sch.  Dist.  No.  5,  the  same  to 


1  Porter  v.  State,  78  Tex.  591,  (14  S.  W.  794. ) 

2  Reynolds  L.  &  C.  Co.  v.  McCabe,  72  Tex.  57. 
•Lowe  v.  Hardy,  (Utah)  26  Pac.  982. 


'Hewett  v.  Miller,  21  Vt.  402. 
6  Sawyer  v.  Williams,  25  Vt.  311. 


DISTRICT   ALTERATION. 


73 


constitute  a  new  district,"  was  a  sufficiently  definite  description 
of  the  real  estate  proposed  to  be  set  off ;  and  the  town  having 
voted  to  "  constitute  a  new  school  district  agreeably  to  such  ar- 
ticle in  the  warning,"  it  was  legal.1  And  where  a  warning  was 
to  see  if  the  town  will  divide  a  district,  and  annex  a  portion  of 
it  to  one  and  the  remainder  to  another,  the  town  may  set  the 
whole  of  the  district  proposed  to  be  divided  to  either  of  the 
other  districts  named.1  Districts  formed  of  parts  of  two  or 
more  towns  may  be  dissolved  or  altered  by  mutual  consent.3 
The  control  of  a  town  over  a  farm,  and  the  acquiescence  in  such 
.acts  by  the  district  from  which  such  farm  is  set  off,  for  a  quarter  of 
a  century,  is  a  ratification  to  the  separation.3  A  vote  of  a  town 
to  annex  one  school  district  to  another  has  the  effect  to  abolish 
the  former  and  enlarge  the  latter  without  the  necessity  of  new 
organization,3  but  under  Rev.  Stat.,  §  557,  the  union  of  districts 
-does  not  merge  them  until  their  debts  are  paid.*  Where  taxes 
have  been  levied  for  the  purpose  of  building  school-house  and 
for  expenses,  and  the  district  is  then  divided,  the  district  that  is 
set  off  cannot  enjoin  the  collection  of  the  tax.6 

§  63.  District  alteration. — (Wash.,  &c.)  Where  district  is 
divided  and  the  building  is  afterwards  burned,  and  the  directors 
of  that  district  pursuant  to  an  election  rebuild  with  the  insur- 
ance, they  cannot  be  compelled  by  mandamus  to  pay  the  same 
to  county  treasurer  for  new  district.6  (West  Va.)  Where  a  dis- 
trict was  divided  under  act  of  1881,  and  no  provision  was  made 
for  assets  and  liabilities,  the  old  district  was  entitled  to  property 
situated  therein  and  debts  due  it,  and  new  district  was  entitled 
to  the  property  within  its  limits,  and  was  not  liable  to  contrib- 


1  Moore  v.  Beattie,  33  Vt.  219. 

2  Jones  v.  Camp,  34  Vt.  384. 

3  Greenbanks  v.  Boutwell,  43  Vt.  207. 


<Needham  v.  Sch.  Disk,  (Vt.)  20  A.  198. 
6  Dyer  v.  Sch.  Dist.,  ( Vt. )  17  A.  788. 
« Elder  v.  Territory,  (Wash.)  19  P.  29. 


74  PUBLIC  SCHOOL  LAW. 

ute  to  old  one.1  (Wis.)  The  notice  for  alteration  of  a  district 
must  be  proved  outside  of  record  of  the  board.2  A  district  in- 
cluded in  the  towns  constituted  by  the  division  of  a  town, 
becomes  a  joint  district,  and  requires  joint  action  of  the  super- 
visors of  the  two  towns  to  alter  it ;  and  on  a  division  by  a  joint 
order  of  the  supervisors,  they  must  determine  the  sum  to  be 
paid  by  the  district  retaining  the  school-house  to  the  other.8 
The  requirement  that  such  sum  shall  be  determined  uat  the 
time  of  forming  such  new  district,"  may  be  performed  by  the 
supervisors  jointly  afterwards,3  but  until  such  determination  a. 
levy  of  a  tax  on  that  account  will  not  be  compelled.3  Where  a 
portion  of  a  district  has  been  detached,  and,  with  other  terri- 
tory, formed  into  a  free-school  district,  and  the  remaining  terri- 
tory also  formed  into  a  new  district,  the  latter  is  alone  liable 
for  debts  of  original  district.4  By  E.  S.,  ch.  19,  §  6,  on  the  di- 
vision of  districts  either  may  appeal  to  state  superintendent 
from  an  apportionment.6  The  various  districts  into  which  a  dis- 
trict is  divided  may  unite  in  a  suit  in  the  name  which  district 
had  before  division  to  maintain  prior  rights.6 

§  64.  District  alteration. — In  the  case  of  City  of  Winona 
v.  Sch.  Dist.,  40  Minn.  13,  it  was  decided:  "Part  of  territory 
of  school  district,  which  is  annexed  to  city  by  statute,  becomes 
part  of  the  city  for  school  as  well  as  for  other  municipal  pur- 
poses, and  ceases  to  be  a  part  of  the  school  district.  "Where 
part  of  the  territory  of  one  municipal  corporation  is  taken  from 
it  and  annexed  to  another,  the  former  corporation  retains  all  its 
property,  including  that  which  happens  to  fall  within  the  limits 
of  such  other  corporation,  unless  some  other  provision  is  made 
by  the  act  authorizing  the  separation. 


iRd.  Ed.  Barker  Dist.  v.  Bd.  Ed.,  (W.  Va.) 

S.  E.  640. 

estate  v.  Graham,  60  Wis.  395. 
.  Rice,  35  Wis.  178. 


*Brig£s  v.  Sch.  Dist.  No.  1,  21  Wis.  348. 

s  Sch.  Dist.  No.  2  v.  Sch.  Dist.  No  1, 3  Wis.  333. 

6  Sch.  Dist.  No.  3  v.  Macloon,  4  Wis.  79. 


DISTRICT   ALTERATION.  75 

"We  have,  then,  a  case  where  the  legislature  has  changed 
the  boundaries  of  two  municipalities,  (but  without  abolishing 
either,)  so  that  corporate  property  acquired  and  held  by  one 
for  public  or  governmental  purposes  now  falls  within  the  terri- 
torial limits  of  the  other,  but  has  made  no  provision  for  the  di- 
vision of  the  property,  or  apportionment  of  the  debts  of  the 
two  incorporations.  The  question  is,  Under  such  a  state  of 
facts,  does  the  property  continue  to  belong  to  the  incorporation 
from  which  the  territory  has  been  detached?  or,  has  it  become 
the  property  of  the  municipality  within  whose  limit  it  now  falls  ? 
The  absolute  right  of  the  legislature,  in  all  cases  not  within  any 
constitutional  prohibition,  to  create,  alter,  divide  or  abolish  all 
municipal  corporations,  or  quasi  corporations,  and  to  make  such 
division  and  apportionment  of  the  corporate  property  and  debts 
of  an  old  corporation,  in  case  of  a  division  of  its  territory,  a& 
the  legislature  may  deem  equitable,  is  well  settled.  This  doc- 
trine has  been  fully  recognized  by  this  court :  State  v.  City  of 
Lake  City,  25  Minn.  404.  But  in  the  present  case  the  legis- 
lature has  made  no  such  division  or  apportionment.  The  rule 
generally  laid  down  in  both  the  text-books  and  the  adjudicated 
cases  is,  that  if  a  part  of  the  territory  of  a  municipal  corpora- 
tion is  separated  from  it  by  annexation  to  another,  or  by  the 
erection  of  a  new  corporation,  the  old  corporation  still  retains 
all  its  property  and  is  responsible  for  all  its  debts,  unless  some 
other  provision  is  made  by  the  act  authorizing  the  separation. 

"  In  all  these  cases,  beginning  with  that  of  Windham  v.  Port- 
land, 4  Mass.  384,  the  rule  is  laid  down  as  we  have  already 
stated  it,  Parsons,  C.  J.,  in  the  case  just  cited,  adding:  'Thus 
it  [the  old  town]  would  continue  seized  of  all  its  lands,  pos- 
sessed of  all  its  personal  property,  entitled  to  all  its  rights  of 


76  PUBLIC   SCHOOL   LAW. 

action,  bound  by  all  its  contracts,  and  subject  to  all  its  duties.' 
(See  also  Hampshire  v.  Franklin,  16  Mass.  76,  86;  and  First 
Parish  in  Medford  v.  Pratt,  4=  Pick.  222.)  It  is  true  that  in 
none  of  these  cases  did  the  question  arise  as  to  corporate  realty 
.situated  in  the  detached  territory,  but  no  exception  as  to  such 
property  is  even  suggested.  In  School  District  v.  Richardson, 
23  Pick.  62,  although  only  obiter,  it  is  said  that  the  alteration 
of  a  school  district  by  increasing  or  diminishing  its  size  would 
not  destroy  its  identity  or  affect  its  rights  of  property ;  that  as 
the  identity  of  the  corporation  would  remain,  it  would  seem 
that  the  property  would  not  be  divested,  although  the  school- 
house,  by  the  newly-assigned  limits,  might  fall  without  the  ter- 
ritory of  the  district. 

"In  Union  Baptist  Society  v.  Town  of  Candia,  2  N.  H.  20, 
the  proprietors  gave  the  town  of  Chester  a  lot  for  the  use  of  the 
ministry.  A  portion  of  the  town,  including  this  lot,  was  sub- 
sequently incorporated  into  a  separate  town  by  the  name  of 
'Candia.'  The  town  of  Candia  having  realized  a  sum  of 
money  by  an  assumed  lease  of  the  lot,  the  plaintiff,  a  religious 
society  incorporated  and  worshiping  in  Candia,  brought  suit  for 
.a  portion  of  the  interest  on  the  fund.  It  is  true  that  it  may  be 
.said  that  this  lot  was  not  strictly  public  or  corporate  property, 
but  merely  held  in  trust  by  the  town  for  pious  uses ;  but  in 
deciding  the  case  the  court  says  the  facts  do  not  raise  the  ques- 
tion whether  a  town,  as  a  civil  corporation,  has  the  sole  right  to 
property  given  'for  the  use  of  the  ministry,'  or  whether  each 
individual,  each  settled  minister  or  each  religious  society  ip  the 
town  has  a  proportionate  right  to  it.  'Because  the  lot  was 
granted  to  Chester,  and  not  to  Candia,  and  whether  by  the 
grant  there  vested  in  Chester  an  absolute  fee,  a  base  fee  deter- 


DISTRICT   ALTERATION.  77 

minable  on  the  settlement  of  a  minister,  a  trust  for  each  theo- 
logical association,  or  any  other  imaginable  interest,  is  of  no- 
consequence.  .  .  .  It  is  apparent  that  when  Candia  was 
formed  from  Chester,  though  this  lot  fell  within  its  boundaries 
it  was  not  conveyed  to  that  town,  either  in  its  charter  or  by  any 
vote  of  Chester.  The  title  to  it,  therefore,  like  the  title  to  all 
other  land  within  its  limits,  remained  unchanged,  and  the  town 
[of  Candia]  acquired  over  that,  as  over  other  land,  only  a  cor- 
porate jurisdiction.'  This  was  approved  in  Southampton  v~ 
Fowler,  52  N.  H.  225,  230.  Whittier  v.  Sanborn,  38  Me.  32, 
ig  directly  in  point.  It  was  there  held  that  the  alteration  by  a 
town  of  the  lines  of  a  school  district,  whereby  its  school-house 
is  left  within  the  limits  of  another  district,  will  not  defeat  or 
affect  its  right  of  property  therein.  (See  also  North  Yarmouth 
v.  Shillings,  45  Me.  133.) 

"  In  the  case  of  Board  of  Health  v.  City  of  East  Saginaw^ 
45  Mich.  257,  the  facts  were,  that  land  had  been  conveyed  to  the 
board  of  health,  in  trust  for  cemetery  purposes  for  the  township 
of  Buena  Yista.  Subsequently  the  city  of  East  Saginaw  was- 
incorporated  out  of  a  part  of  the  township,  including  the  ceme- 
tery. This  case,  while  perhaps  like  Union  Baptist  Society  v. 
Town  of  Candia,  supra,  distinguishable  in  its  facts  from  the 
present  one,  is  nevertheless  in  point,  in  view  of  grounds  upon 
which  its  decision  is  made  to  rest  and  the  legal  propositions 
laid  down  by  the  court.  It  was  there  held  that  corporate  prop- 
erty is  not  affected  at  common  law  by  changes  which  leave  the 
corporate  character  in  existence  and  do  not  destroy  the  corpo- 
rate identity ;  that  there  is  no  common-law  rule  by  which  prop- 
erty can  be  transferred  from  one  corporation  to  another  without 
a  grant ;  and  that,  as  there  was  no  statute  making  any  different 


78  PUBLIC   SCHOOL   LAW. 


provision,  the  property  was  unaffected  by  the  change  in  bound- 
aries. 

"In  Town  of  Milwaukee  v.  City  of  Milwaukee,  12  Wis.  102, 
a  portion  of  the  town  was  annexed  to  the  city,  including  a  tract 
of  land  which  the  town  had  acquired  by  purchase.  It  was  held 
that  the  act  extending  the  city  limits  over  the  land  in  question 
did  not  divest  the  town  of  its  title.  The  case  does  not  disclose 
for  what  purpose  the  town  acquired  or  used  the  land,  but  it  is 
fair  to  assume  that  it  was  only  for  some  public  and  municipal 
purpose.  The  weight  of  the  decision  as  an  authority  in  point, 
however,  is  weakened  by  the  fact  that  the  court  denied  the 
power  of  the  legislature  to  divest  a  corporation  of  its  property 
-without  the  consent  of  its  inhabitants. 

"In  Town  of  Depere  v.  Town  of  Bellemie,  31  Wis.  120,  the 
broad  and  unqualified  proposition  was  laid  down,  that  if  a  part 
of  the  territory  of  a  town  is  separated  from  it  by  annexation  to 
another,  or  by  the  creation  of  a  new  corporation,  the  remaining 
part  of  the  town,  as  the  former  corporation,  retains  all  its  prop- 
erty and  remains  subject  to  all  its  obligations,  unless  some  ex- 
press provision  to  the  contrary  is  made  by  the  act  authorizing 
the  separation.  In  this  case,  however,  the  only  question  before 

the  court  was  the  right  of  the  old  town  to  compel  the  new  town 

i 
to  contribute  toward  the  payment  of  corporate  debts  contracted 

before  the  division.  We  find  no  decision  in  conflict  with  this 
:rule,  although  there  are  some  obiter  dicta  suggesting  the  limita- 
tion or  qualification  of  it  contended  for  by  plaintiff.  Thus  in 
Hartford  Bridge  Co.  v.  East  Hartford,  16  Conn.  149,  171, 
after  stating  the  rule  as  above,  the  court  adds,  'at  least  as  it 
regards  property  which  has  no  fixed  location  in  the  new  town, 
.as  lands,  buildings,  etc. ; '  and  in  School  District  v.  Tapley*  1 


DISTRICT   ALTERATION.  79 

Allen,  49,  the  court,  referring  to  the  dictum  in  School  District 
<v.  Richardson,  supra,  remarks:  'It  is  at  least  questionable 
whether  the  better  practical  rule  in  all  cases  would  not  be  to 
regard  this  species  of  property  [school-houses]  in  towns  as 
strictly  local  in  its  character  and  uses,  and  as  vesting  in  the 
district  in  which,  upon  any  new  division,  it  might  chance  to 
fall.'  How  far  this  remark  was  suggested  by  the  peculiar 
relations  which  school  districts  and  school  property  bore  to  the 
towns  in  that  state,  it  is  impossible  to  say. 

"In  Larimer  Co.  v.  Albany  Co.,  92  U.  S.  307,  315,  the  judge 
delivering  the  opinion  says:  'Old  debts  she  [the  original  cor- 
poration] must  pay  without  any  claim  for  contribution,  and  the 
new  subdivision  has  no  claim  to  any  portion  of  the  public  prop- 
erty, except  what  falls  within  her  boundaries;  and  to  all  that 
the  old  corporation  has  no  claim.'  The  same  limitation  is  re- 
peated in  Mi.  Pleasant  v.  Beckwith,  100  U.  S.  514,  525,  and 
quoted  by  this  court  in  State  v.  City  of  Lake  City,  supra. 

"This  is  all  we  have  been  able  to  find  in  support  of  plaintiff's 
contention.  But  it  is  a  remarkable  fact  that  these  suggestions 
of  a  limitation  or  qualification  of  the  rule  are  not  only  purely 
obiter,  but  the  question  is  not  discussed,  no  reason  is  assigned, 
and  no  authority  cited  in  its  support,  unless  it  be  the  old  case  of 
North  Hempstead  v.  Hempstead,  2  Wend.  109,  which,  as  we 
shall  see,  is  not  at  all  in  point. 

"There  is  a  line  of  cases,  often  confounded  with,  but  clearly 
distinguishable  from,  that  now  under  consideration,  where  the 
old  corporation  was  entirely  abolished,  and  new  ones  created  out 
of  its  territory.  In  such  cases  it  is  well  settled  that  the  new  cor- 
porations are  to  be  deemed  the  successors  of  the  old  one,  and 
as  such  liable  for  all  its  debts  and  entitled  to  all  its  property. 


80  PUBLIC   SCHOOL   LAW. 

And  in  the  absence  of  any  legislative  provision  on  the  subject^ 
it  is  held  in  such  cases  that  each  of  the  new  corporations  will 
take  the  property  which  happens  to  fall  within  its  limits.  This- 
result  the  courts  have  arrived  at  from  what  seem  the  necessities 
of  the  case,  in  view  of  the  defective  legislation  on  the  subject. 
School  District  v.  Richardson,  supra,  and  School  District  v.  Tap- 
ley,  supra,  fall  under  this  head.  Cases  where  two  corporations 
have  been  united  or  consolidated  into  one  may  also  be  placed 
in  this  class.  Such  is  Bobbins  v.  School  District,  10  Minn.  268 
(340,  349.)  The  case  of  North  Hempstead  v.  Hempstead,  supra, 
also  belongs  to  this  class ;  for,  as  we  understand  the  statement 
of  facts,  the  original  town  of  Hempstead  had  been  entirely 
abolished  and  two  new  towns  erected  out  of  its  territory,  called 
respectively  North  Hempstead  and  South  Hempstead,  the  latter 
afterwards  changed  to  Hempstead ;  and  notwithstanding  some 
loose  remarks  apparently  on  both  sides  of  the  question  we  are 
now  considering,  the  court  made  the  decision  of  the  case  largely 
to  turn  upon  the  fact  that  the  two  new  towns  had  acquiesced  in 
a  practical  division  of  the  property  (common)  for  thirty-seven 
years,  and  therefore  whatever  their  rights  might  have  been  at 
the  date  of  the  division,  they  were  barred  by  the  lapse  of  time. 
In  Connor  v.  Board  of  Education,  supra,  the  title  of  the  school- 
house  was  held  to  be  in  the  city  of  St.  Anthony,  not  by  virtue 
of  the  act  of  1860,  extending  the  city  limits,  but  under  the  ex- 
press provisions  of  the  act  of  1861. 

"The  authorities  on  the  question,  BO  far  as  there  are  any,  are 
therefore  all  against  the  contention  of  plaintiff,  and  upon  reason 
and  principle  we  cannot  see  why  any  distinction  should  be  made 
as  to  property  which,  on  change  of  boundaries,  falls  within  the 


DISTRICT   BOUNDARY.  81 

limits  of  another  municipality,  or  why  the  title  should  not,  like 
that  of  all  other  property,  remain  unaffected  by  the  change." 

§  65.  District  boundary. — The  boundary  of  a  district  may 
be  established  by  its  boundaries  on  a  former  division  of  the 
town  into  districts,1  and  where  school  society  voted  that  F.  and 
the  occupants  of  his  house  shall  be  set  to  certain  district,  this 
included  the  farm  and  a  house  rebuilt  in  another  place  when  first 
was  taken  down ;  and  acquiescence  for  many  years  will  estop 
the  owner ;  and  in  1808,  school  societies  of  Conn,  had  power  to 
alter  districts.2  Under  Mo.  St.  of  1879  the  county  commis- 
sioner cannot  change,  except  as  shown  by  the  petition  and 
notice.3  Clerical  error  in  defining  boundary  made  by  statute 
attempting  to  make  union  school-district  boundary  same  as 
city,  may  be  corrected.*  The  Mass,  act  of  1789,  ch.  19,  §  2, 
gives  to  a  town  the  power  to  define  the  limits  of  school  dis- 
tricts by  geographical  division  of  the  town  only.5  A  farm  situ- 
ated in  an  adjoining  town  having  been  annexed  to  a  school 
district  in  P.,  a  subsequent  act,  providing  that  P.  shall  consti- 
tute but  one  school  district,  was  construed  as  meaning  that  P. 
(as  now  existing  for  school  purposes)  shall  constitute  but  one 
school  district.6  Extending  the  territorial  limits  of  a  munici- 
pality does  not  enlarge  the  school  district  within  it  ;7  and  courts 
will  not  consider  whether  certain  territory  included  in  a  district 
is  contiguous  thereto,  until  the  action  of  the  officers  of  the  dis- 
trict.8 Where  two  districts  were  organized,  embracing  certain 
common  territory,  it  would  be  included  in  the  district  whose 
organization  was  first  commenced.8  In  Me.,  where  the  town 


i  Wilson  v.  Sch.  Dist.  No.  4,  32  N.  H.  118. 
2Scoville  v.  Mattson,  55  Conn.  144. 
3  Sch.  Dist.  v.  Sch.  Diet.,  (  Mo. )  7  S.  W.  285. 
*  Attorney  General  v.  Hatch,  60  Mich.  229. 
&Withiugton  v.  Eveleth,  7  Pick.  (Mass.)  106. 

—  6 


6  Pickering  v.  Coleman,  53  N.  H.  424. 

7  State  v.  Ind.  Sch.  Dist.,  46  Iowa,  425. 
8Ind.  Dist.  v.  Sioux  County  Supervisors,  51 

Iowa,  658. 


82  PUBLIC   SCHOOL   LAW. 

changes  the  limits  of  the  district  without  the  recommendation 
required  by  law,  it  is  void.1 

§  66.  District  dissolution. — A  tax-payer  may  have  sale 
of  property  enjoined  on  dissolution  of  district,  where  a  majority 
of  the  tax-payers  do  not  vote,  as  required  by  law.2 

§  67.  District  library. — In  the  absence  of  any  general  and 
local  regulations  in  regard  to  libraries,  an  action  cannot  be 
maintained  by  a  tax-payer  against  the  librarian  for  refusing  to 
allow  her  children  to  take  out  books.3 

§  68.  District  organization. — Where  a  school  society  di- 
vided itself  into  five  districts,  designating  them  as  the  eastern, 
middle,  southern,  western,  and  northern,  these  terms  were  used 
as  descriptive,  and  not  for  fixing  their  names,  and  evidence 
that  one  had  been  known  by  the  name  of  the  south  district  was 
admissible.4  Proof  that  trustees  are  discharging  the  duties  re- 
quired by  statute  is  prima  facie  evidence  of  the  organization  of 
the  district.5  On  the  formation  of  a  town  in  Ind.,  it  is  entitled 
to  the  public-school  buildings  within  its  limits.6  In  111.,  an 
omission  to  file  in  the  county  clerk's  office  a  list  of  the  tax- 
payers and  a  copy  of  proceedings  as  to  change  of  district  will 
not  prevent  a  de  facto  organization  ;7  and  under  the  111.  school 
law  the  trustees  of  schools  have  no  discretion  to  refuse  to  form 
a  new  district  when  it  embraces  at  least  five  families  ;  and  when 
the  law  is  complied  with,  if  they  refuse  to  grant  such  petition 
they  will  be  compelled  by  mandamus;8  but,  in  1874,  a  new 
district  line  cannot  be  brought  nearer  than  one  mile  to  any 
school-house.9  The  only  way  in  which  the  illegality  of  forma- 
tion of  district  can  be  inquired  into  is  by  a  quo  warranto9 

i  Allen  v.  Archer,  49  Me.  346.  e  Sch.  Tp.  Allen  v.  Sch.  Tp. ,  ( Ind. )  10  N.  E.  578. 

2Briggs  v.  Bqrdeau,  (JMich. ) _38JN, W.  712.  *  People  v.  Newberry.  87  111.  41. 


*  Kennedy  v.  Ray,  22  Barb.  (N.  Y. )  511. 
4  Sch.  Dist.  v.  Blakeslee,  13  Conn.  227. 
«Swails  v.  State,  4  Ind.  516. 


.  of  Schools  v.  People,  76  111.  621. 
»Trumbo  v.  People,  75  111.  561. 


DISTRICT   ORGAIZATIOtf. 


83 


Where  it  does  not  appear  that  the  trustees,  in  laying  off  a 
township  into  districts,  acted  corruptly  or  oppressively,  a  court 
will  not  interfere  ;*  and  the  legality  of  the  formation  of  a  dis- 
trict cannot  be  inquired  into  collaterally.2  A  statute  required 
the  petition  for  a  new  district  to  be  signed  by  "two-thirds  of 
all  the  voters  in  any  territory  containing  not  less  than  five  fam- 
ilies " :  this  meant  two-thirds  of  all  the  voters  residing  in  the 
territory  proposed  to  be  formed  into  a  new  district,  and  not 
five  families  residing  in  the  particular  territory  taken  from  any 
one  district.3  In  a  suit  of  quo  warranto  against  directors  of 
new  union  district  in  111.,  formed  out  of  territory  in  different 
townships,  a  plea  is  bad  that  does  not  allege  that  the  petition 
for  formation  of  the  union  district  showed  that  it  did  not  con- 
tain less  than  ten  families.4  In  111.,  to  form  a  new  district  from 
parts  of  two  in  different  townships,  the  petition  to  trustees  of 
each  township  must  show  legal  necessity,  and  be  signed  by 
two-thirds  of  all  the  freeholders  and  legal  voters.5 

§  69.  District  organization. — The  failure  to  file  a  map  with 
the  county  clerk  does  not  invalidate  the  new  district.6  Where 
petition  for  organization  of  district  lying  in  several  townships 
is  accompanied  by  the  affidavits,  mandamus  is  proper  remedy  to 
compel  the  formation  of  new  district  under  111.  Stat.,  Starr  & 
C.,  p.  2214,  §34.7  Under  K.  S.  Iowa,  1860,  ch.  88,  incorpo- 
rated cities,  towns,  and  villages  of  not  less  than  300  inhabitants 
may  organize  as  separate  districts.8  A  district,  formed  by  giv- 
ing notice  to  and  taking  the  votes  of  only  a  part  of  the  residents 
therein,  is  illegally  organized  ;9  and  under  §1800,  Code  Iowa  as 
amended,  the  inhabitants  of  territory  contiguous  are  not  included 


1  Thompson  v.  Beaver,  63  111.  353. 
SAlderamn  v.  Sch.  Dirs.(  91  111.  179. 
3Boone  v.  People,  4  111.  App.  231. 
*Carrico  v.  People,  (111. )  14  N.  E.  6( 
*Webb  v.  People,  11  111.  App.  358. 


e  Sch.  Dirs.  of  Dist.  No.  5  v.  Sch.  Dirs.  of  Disk 

No.  10,  73  111.  249. 

TTrs.  Sch.  v.  People,  (111.)  13  N.  E.  526. 
s  Fort  Dodge  v.  Wahkanpa,  15  Iowa,  434. 
9  Fort  Dodge  v.  Dist.  Tp.,  17  Iowa,  85. 


PUBLIC   SCHOOL   LAW. 


to  make  the  number  necessary  to  create  the  city  into  a  separate 
district.1  Under  §  1800,  Iowa  Code,  a  village  with  contiguous 
territory  must  contain  200  inhabitants  before  forming  it  into  an 
independent  district.2  Under  Iowa  amendment  1866,  ch.  143, 
§§  9,  10,  the  "contiguous  territory"  need  not  be  confined  to  the 
same  township  in  which  the  city,  town,  or  sub-district  is ;  nor  is 
it  restricted  to  territory  in  another  township  forming  previously 
a  part  of  such  sub-district,3  and  it  is  not  necessary  that  the 
boundaries  should  be  fixed  by  the  concurrent  action  of  the  two 
townships,  to  form  the  new  independent  district.3  In  Iowa 
independent  districts  may  be  created  from  two  or  more  civil 
townships,  or  parts  of  the  same,  situated  in  adjoining  counties.* 
Where  the  board  of  directors  had  created  a  sub-district  and 
then  it  voted  in  favor  of  an  independent  organization,  the  fact 
that  a  sub-director  had  not  been  elected  did  not  invalidate  such 
organization.5  A  statute  curing  an  informality  in  the  election 
on  the  question  of  organizing  an  independent  district,  would 
not  have  the  effect  to  change  or  modify  the  boundaries  of  such 
district.6  Validity  of  school  organization  cannot  be  inquired 
into,  in  proceeding  by  tax-payer  to  restrain  collection  of  tax,6 
and  cannot  be  attacked  except  in  a  direct  proceeding  prosecuted 
by  a  proper  officer.7  The  Ky.  statute  creating  Harrodsburg 
educational  district  in  1876,  does  not  conflict  with  common- 
school  provisions  of  constitution.8  Where  a  district  is  laid  out 
by  geographical  lines,  and  then  certain  individuals  and  estates 
are  added  thereto,  this  does  not  violate  the  rule  which  requires 
districts  to  be  established  by  geographical  limits  ;9  and  where 


i  Allen  v.  Dist.  Tp..  (Iowa)  30  N.  W.  684. 
2Allen  v.  Bertram  Diet.  Tp.,  70  Iowa,  434. 
3  Ind.  Sch.  Dist.  v.  Supervisors,  25  Iowa,  305. 
4 Dist  of  Union  v.  Dist.  of  Greene,  41  Iowa,  30. 
6  Ind.  Sch.  Dist.  v.  Ind.  Sch.  Dist.  5,  48  Iowa, 

157. 
«  A.  T.  &  S.  F.  R.  R.  v.  Wilson,  33  Kas.  223. 


i  Voss  v.  Sch.  Dist.,  18  Kas.  467;  Sch.  Dist.  v. 
State,  29  Kas.  57;  Stockle  v.  Silsbee,  41 
Mich.  615;  Clement  v.  Everest,  29  Mich.  22. 

8Bd.  Trs.  v.  Harrodsburg  Ed.  Dist.,  (Ky.) 
7  S.  W.  312. 

*Alden  v.  Rounseville,  7  Mete.  (Mass.)  218. 


DISTRICT   ORGANIZATION. 


85 


the  town  directed  that  certain  persons  named  should  compose 
the  district  (the  land  occupied  by  those  persons  should  form 
the  district  not  being  expressed)  the  limitation  of  the  district 
was  invalid.1 

§70.  District  Organization. — The  formation  of  a  village 
school  district,  confirmed  bj  the  legislature,  was  held  to  be 
legally  established,2  and  the  act  of  1821,  ch.  117,  Me.,  made 
each  school  distrjct  a  "body  corporate,"  and  included  those 
existing  de  facto?  Under  Laws  of  1850,  art.  2,  ch.  193,  §  2,  it 
will  be  presumed,  in  a  suit  for  building  a  school-house,  that  the 
district  was  legally  organized,  when  for  more  than  a  year  pre- 
vious there  had  been  a  school,  and  it  was  kept  in  the  school- 
house  since  it  was  built,  and  the  expenses  have  been  paid  from 
the  town  treasury  in  the  usual  way,  and  taxes  have  been  regu- 
larly levied.*  An  act  of  Me.,  providing  that  "every  school 
district "  shall  be  presumed  to  be  legally  organized,  etc.,  is  not 
conclusive  in  case  of  fraud.5  The  exercise  of  the  franchise  and 
privileges  of  a  district  by  defendants  for  more  than  a  year  is 
evidence  of  organization.6  Legislature  may  validate  action  of 
town  that  is  informally  defective,7  and  where  a  district  has 
existed  many  years,  and  received  its  portion  from  the  county 
treasury,  a  tax-payer  cannot  question  the  organization,  to  resist 
a  tax,8  and  a  district  acting  for  thirteen  years,  with  acquiescence 
of  everybody,  is  not  liable  to  have  its  organization  called  in 
question  thereafter,  in  collateral  suit.9  As  against  a  trespasser, 
the  fact  that  the  trustees  of  a  school  district  have  acted  for 
years  and  had  possession  of  school-house  is  evidence  of  their 


iWithlngton  v.  Eveleth,  7  Pick.  (Mass.)  106. 
2  Smyth  v.  Titcomb,  31  Me.  272. 
'Whitmore  v.  Hogan,  22  Me.  564. 
*  Collins  v.  Sch.  Dist.,  52  Me.  522. 
6  Call  v.  Chad  bourne,  46  Me.  200. 


e  Collins  v.  Sch.  Dist.,  52  Me.  522. 

^  Allen  v.  Archer,  49  Me.  346. 

s Stuart  v.  Sch.  Dist.,  30  Mich.  69;  State  v. 

Cent.  P.  R.  R.,  (Nev. )  25  P.  996. 
9  Stuart  v.  Sch.  Dist.,  30  Mich.  69. 


86 


PUBLIC   SCHOOL   LAW. 


incorporation.1  Continued  existence  for  more  than  twenty-five 
years  prior  to  1808,  with  acquiescence,  the  creation  by  act  of 
legislature  will  be  presumed.2  After  acquiescence  for  more 
than  fifteen  years,  the  division  of  the  town  and  the  regular  or- 
ganization of  such  districts  will  be  presumed.3  The  existence 
of  a  district  may  be  proved  by  reputation,*  and  the  existence 
and  operation  of  a  school  district  may  be  shown  by  witnesses 
on  the  stand  when  the  loss  of  the  records '  of  the  district  is 
shown.5  Where  a  district  has  been  organized,  and  has  chosen 
its  officers  for  years,  it  cannot  be  organized  again  as  an  unor- 
ganized district,6  and  a  person  may  contest  such  organization, 
even  if  he  was  moderator  of  a  meeting  under  such  new  organi- 
zation.6 There  should  be  some  special  reason  to  justify  inter- 
ference by  quo  warranto  with  the  organization  of  a  district, 
where  a  speedier  remedy  is  given  by  appeal.7  County  commis- 
sioners forming  a  district  may  appeal  from  order  of  district  court 
that  reverses  their  action  ;8  but  error  does  not  lie  in  Pa.  on  a  re- 
fusal of  court  of  quarter  sessions  to  open  a  decree  establishing 
an  independent  school  district  under  act  of  1855,  notwithstand- 
ing act  of  1857.9 

§71.  District  organization. — In  Pa.,  to  form  an  inde- 
pendent district  the  commissioners  shall  give  notice  of  the  time 
and  place  that  they  shall  inquire  into  the  expediency  of  estab- 
lishing it.10  Kecord  must  show  proper  notice  of  time  and  place 
was  given.11  Where  new  district  in  Mo.  is  petitioned  for,  only 
three  notices  need  be  posted  in  each  district  affected,  and  they 
need  not  describe  the  entire  boundaries  of  the  new.18  The  Mo. 


iRobie  v.  Sedgwick,  4  Abb.  (N.  Y. )  App.  73. 

SBowen  v.  King,  34  Vt.  156. 

•Sherwin  v.  Bugbee,  16  Vt.  439. 

*  State  v.  Williams,  27  Vt.  755;    Barnes  v. 

Barnes,  6  Vt.  388. 
'Sherwin  v.  Bugbee,  16  Vt.  439. 
•Thomas  v.  Gibson,  11  Vt.  607. 


*  People  v.  Every,  38  Mich.  405. 

8Moode  v.  Cummis,  43  Minn.  312. 

9 Brown  v.  Ind.  Sch.  Dist.,  (Pa. )  16  A. 
10Ind.  Sch.  Dist.  No.  8,  33  Pa.  St.  297. 
11  Frac.  S.  D.  v.  Bd.  Insp.,  63  Mich.  611. 
"Mason  v.  Kennedy,  89  Mo.  23. 


DISTRICT   ORGANIZATION. 


87 


Rev.  Stat,  §  7022,  in  regard  to  formation  of  school  districts, 
authorizes  creation  of  districts  only  from  unorganized  territory ; 
only  three  resident  tax-payers  can  call  a  meeting  of  the  tax- 
payers.1 In  JVIo.,  the  call  to  organize  must  come  from  tax- 
payers affected,  and  this  is  a  condition  precedent.1  In  Ohio, 
school  district  partly  in  different  townships  cannot  be  formed 
without  the  consent  of  a  majority  of  trustees  of  each  township, 
upon  a  petition  of  a  majority  of  the  citizens  in  the  contem- 
plated district.2  A  town  at  annual  meeting  may  add  a  district 
to  another,  and  then  at  a  special  meeting  rescind  that  action 
and  form  a  new  one  out  of  it  ;3  and  the  action  of  county  super- 
intendent in  attempting  to  organize  a  new  district  without  au- 
thority does  not  invalidate  a  lawful  meeting  of  legal  voters  of 
the  district  voting  money  lawfully.*  A  district,  after  ceasing 
to  act  for  ten  years,  may  organize  anew,  when  required  so  to  do 
by  the  town,  without  being  by  vote  of  the  town  set  off  anew.5 
Geographical  limits  must  be  defined  by  the  vote  of  the  town 
meeting;6  and  the  geographical  limits  of  a  district  must  be  de- 
fined by  the  inhabitants  of  the  town,  at  a  legal  meeting  warned 
for  that  purpose.7  If  a  new  district  is  without  boundaries,  its 
existence  is  suspended  until  they  are  designated  by  law  ;8  and 
the  lines  of  the  new  district  should  be  reported  by  a  plat.9  The 
action  on  the  report  must  be  made  at  the  term  after  that  to 
which  the  report  is  made;  a  subsequent  application  to  open 
the  confirmation  under  Pa.  act  May  20,  1857,  does  not  cure.9  A 
city  of  the  second  class  in  Neb.,  having  more  than  2,000  inhab- 
itants, including  such  adjacent  territory  as  may  be  attached  for 
school  purposes,  may  be  formed  into  one  district  under  Neb. 


1  Ferryman  v.  Bethune,  89  Mo.  158. 

2  State  v.  Treas.  of  Tallmadge,  17  Ohio,  32. 

3  Bill  v.  Dow,  56  Vt.  562. 

*  Baldwin  v.  Nickerson,  (Wy.)  19  P.  439. 
*Sherwin  v.  Bugbee,  16  Vt.  439. 


e  Pierce  v.  Carpenter,  10  Vt.  480 ;  Gray  v.  Shel- 
don, 8  Vt.  403. 

7  Sawyer  v.  Williams  25  Vt.  311. 

8  Williams  v.  Crook,  17  Pa.  St.  199. 
»Iud.  Sen.  Dist.  No.  8,  33  Pa.  St.  297. 


88 


PUBLIC   SCHOOL   LAW. 


Gen.  Stat.  961,  §  2,  and  the  boundaries  are  not  restricted  to  the 
city  limits.1  Yt.  G.  S.,  ch.  22,  §  20,  does  not  restrict  the  for- 
mation of  a  school  district  by  a  town,  of  connected  contiguous 
territory.2  Independent  districts  may  embrace  one  or  more 
townships,  in  Minn. ;  and  Gen.  Stat.  1878,  ch.  36,  §  94,  is  not 
controlled  by  §  17,  which  restricts  the  area  to  thirty-six  square 
miles.3  Under  Mo.  (Wagn.  Stat.  1262,  §1),  any  city,  town, 
etc.,  can  organize  for  school  purposes  without  including  in  such 
organization  the  whole  sub-district  to  which  it  previously  be- 
longed.* 

§72.  District  Organization. — Territory  embraced  in  a 
school  sub-district  adjoining  an  incorporated  town,  may,  under 
Wagn.  Stat.  1262,  be  organized  at  the  same  time  with  that  part 
within  the  corporate  limits.  It  is  not  necessary  that  the  voters 
within  and  without  the  corporate  limits  shall  be  in  any  certain 
ratio  to  each  other,  but  a  majority  of  the  lawful  voters  must 
vote  for  the  organization.6  An  act  of  the  general  court,  incor- 
porating part  of  the  town  known  as  School  District  No.  5,  with 
a  part  of  another  town,  into  a  school  district,  does  not  require 
that  the  legal  existence  of  such  a  district  as  the  one  indicated 
should  be  proved,  if  known  by  that  name.6  A  state  legislature 
may  pass  an  act  prescribing  a  mode  of  organizing  schools,  and 
leave  it  to  the  people  of  each  locality  to  determine  by  vote 
whether  they  will  organize  under  the  law  or  not.7  Under  Ohio 
Laws  of  1853  and  1867,  the  whole  of  the  sub  school  district 
which  includes  the  village,  continues  to  be  a  sub  school  district 
of  township  until  the  actual  appointment  of  a  separate  school.8 
A  tract  containing  twenty-eight  square  miles,  of  which  not  more 


1  State  v.  Bowers,  10  Neb.  12. 

2  Weeks  v.  Batcbelder,  41  Vt.  317. 
»  State  v.  Sharp,  27  Minn.  38. 
*btate  v.  Searl,  50  Mo.  268. 

6 State  v.  Bd.  Ed.,  64  Mo.  38. 


6Sch.  Dist.  v.  Smart,  18  N.  H.  268. 

*  State  v.  Wilcox,  45  Mo.  458;  Compare  King 

v.  Phillips.  1  Lans.  (N.  Y.)  421. 
8  Cist  v.  State,  21  Ohio  St.  339 ;  Strong  v.  State, 

Iowa,  352. 


DISTRICT,  UNION.  89 


than  two  are  in  a  town,  cannot  be  incorporated  as  a  town  for 
school  purposes  only,  in  Texas.1  When  a  new  district  is  formed, 
it  is  not,  under  act  of  April  7, 1849,  recognized  as  an  independ- 
ent district  until  the  termination  of  the  current  school  year.2 
Where  a  town  by  the  legislature  was  divided  by  a  line,  and  the 
new  town  should  organize  under  the  Revised  Statutes,  the  line 
left  about  one-thirtieth  part  of  the  district  in  the  west  town 
newly  created,  and  the  residue  in  the  east  town,  and  the  inhab- 
itants of  that  portion  of  the  district  in  the  east  town  voted  a  tax 
and  elected  officers,  held,  that  the  portion  of  the  district  was 
not  a  legal  district.3 

§  73.  District,  union, — A  union  district  was  composed  of 
parts  of  three  different  towns.  Under  Comp.  Stat.,  ch.  20,  §  21, 
a  town  in  this  case  could  not  set  one  or  more  of  its  inhabitants 
to  a  district  in  an  adjoining  town  with  the  consent  of  such  dis- 
trict, because  the  parts  of  the  district  embraced  in  two  of  the 
towns  did  not  appear  ever  to  have  had,  or  claimed  to  have,  any 
organization  as  districts  themselves.  The  district  in  question 
being  a  union  district,  composed  of  parts  of  different  towns,  one 
of  these  parts  could  not  dissolve  the  district,  or  act  as  a  district 
by  itself.  Acting  together  as  a  union  district  for  more  than 
fifteen  years  was  sufficient  to  raise  the  presumption,  in  the  ab- 
sence of  evidence  as  to  the  formation  of  the  district,  that  it  was 
legally  created ;  in  such  a  case,  the  district  and  one  of  its  towns 
in  which  was  the  school-house,  voted  to  accept  into  the  district 
those  portions  of  two  other  towns  which  had  previously  acted 
with  and  been  considered  parts  of  the  district.  This  action  could 
not  be  regarded  as  evidence  that  the  existence  of  the  district 
was  not  already  perfect.  Such  union  district  legally  formed 
can  only  be  dissolved  by  application  to  the  county  court  under 

i State  v.  Eidson,  (Tex.)  76  Tex.  302.  I    8Tileston  v.  Newman,  23  Vt.  421. 

« Williams  v.  Crook,  17  Pa.  St.  199. 


90  PUBLIC   SCHOOL   LAW. 

the  statutes  Vt.,  (Comp.  Stat.  150,  ch.  20,  §  47.)  But  where  a 
quantity  of  land  in  a  town,  owned  by  a  person  residing  in  an- 
other town  composing  the  district,  was  set  off  to  the  district 
and  the  towns,  and  the  district  for  any  considerable  time  ac- 
quiesced, all  parties  were  bound.  If  otherwise,  the  action  of 
the  town  would  be  merely  nugatory,  and  the  land  would  be- 
come no  part  of  the  district.1  A  village  was  incorporated  in- 
cluding only  a  portion  of  district,  having  the  residue  in  the 
town ;  the  effect  of  the  act  was  to  create  a  joint  district  in  the 
town  and  village.  The  town  clerk  should,  upon  the  order  of 
the  school-district  board,  collect  from  the  tax-payers  of  that  part 
of  the  district  lying  within  the  town  their  proportion  of  the 
school-district  tax.2  Before  the  revised  statutes  N.  H.,  there 
was  no  provision  for  the  union  of  school  districts  in  different 
towns.3  A  union  free-school  district  in  N.  Y.  may  contract 
with  attorney  to  defend  a  suit,*  and  trustees  of  a  JS".  Y.  union 
school  district  organized  under  acts  1864  are  a  body  corporate.5 
Union  of  two  or  more  districts  in  Me.,  does  not  abolish  nor 
create  a  district.6  A  deed  to  inhabitants  of  C.  and  L.  union 
district,  if  valid,  vests  the  title  in  the  inhabitants,  but  a  justifica- 
tion under  the  title  of  such  "inhabitants"  is  bad  unless  the 
names  are  given.  The  inhabitants  of  that  portion  of  territory 
of  C.  and  L.  known  as  the  C.  and  L.  union  school  district  "are 
not  a  corporation."7  Under  111.  law  of  1879,  §  33,  the  superin- 
tendent cannot  reverse  the  action  of  the  trustees  when  they 
have  granted  the  prayer  for  the  dissolution  of  a  union  school 
district,  and  the  circuit  court  may,  on  appeal,  quash  the  pro- 
ceedings had  before  the  superintendent.8 


iBowen  v.  King,  34  Vt.  156. 
2  State  v.  Wolfrom,  25  Wis.  468. 
»  Foster  v.  Lane,  30  N.  H.  ( 10  Fost.)  305;  Per- 
kins v.  Lanj^maid,  34  N.  H.  315. 
*  Gould  v.  Bd.  Ed.,  34  Hun  ( N.  Y.)  16. 


6 Porter  v.  Robinson,  30  Hun  (N.  Y.)  209. 
«  Tucker  v.  Wentworth,  35  Me.  393. 
7 Foster  v.  Lane,  30  N.  H.  ( 10  Fost.)  305. 
8  Badger  v.  Knapp,  7  111.  App.  222. 


DISTRICT,  UNION. 


91 


§74.  Election.  —  (See  "Officer"  —  " Voter.")  All  tickets 
having  more  names  than  there  are  vacancies  to  be  filled  must 
be  rejected.1  In  Iowa,  in  voting  a  tax  for  a  school-house  site, 
vote  by  ballot  is  not  required,  in  the  absence  of  a  command  of 
the  statute  ;2  and  in  the  absence  of  any  provision  to  the  con- 
trary, for  election  of  a  commissioner  of  common  schools  by  the 
judges  of  a  county  court,  in  Ky.,  a  vote  may  be  given  viva  voce 
or  by  ballot.3  In  Iowa  the  requirements  of  the  constitution 
for  ballots  do  not  apply  to  elections  of  meetings  of  the  electors 
of  the  township  for  the  transaction  of  business.*  In  Pa.  the  su- 
perintendent of  schools  cannot  decide  a  question  of  a  contested 
election.5  Under  P.  L.  N.  J.  225,  the  presence  of  a  majority  of 
the  taxable  residents  of  the  district  is  necessary  to  vote  money 
at  annual  meeting,  to  build  school-house,  etc.6  Section  1,  Va. 
Acts,  Mich.  5,  1846,  entitled  "An  act  for  the  establishment  of  a 
district  public-school  system,"  only  requires  two-thirds  of  those 
"legal  voters"  of  the  county  voting  to  carry  the  act  into  effect 
in  that  county.7  A  certificate  set  forth  that  "the  whole  num- 
ber of  directors  was  112,  of  whom  56  voted  for  S.  and  55  for 
K.,  one  refusing  to  vote " ;  there  was  no  election ;  the  num- 
ber not  voting  was  construed  as  voting  for  neither,  or  for  the 
minority  candidate.8  In  111.  a  notice  of  election  in  a  school 
district  "for  the  purpose  of  voting  for  a  school-house  site  for  a 
school-house  for  district,  etc.,  and  for  issuing  bonds  to  erect  a 
school-house,"  is  not  invalid  for  indefiniteness  or  uncertainty.9 
A  vote  of  the  inhabitants  of  a  school  district  at  a  meeting  not 
legally  called,  to  raise  money  for  building  a  school-house,  is 
void.10  A  notice  of  election  "  for  the  purpose  of  voting  for  a 


i Contested  Election,  6  Phil.  (Pa.)  437. 

2 Seaman  v.  Banehman,  (Iowa)  47  N.W.  1091. 

s Johnson  v.  De  Hart,  9  Bush.  (Ky.)  640. 

4  Seaman  v.  Baughman,  ( Iowa)  47  N.  W.  1091. 

&Mershon  v.  Baldridge,  7  Watts  (Pa.)  500. 


«State  v.  Sch.  Diet.,  (N.  J.)  10  A.  191. 
^ Literary  Fund  v.  Dalby,  4  Gratt.  ( Va.)  523. 
8Comm.  v.  Wickersham,  66  Pa.  St.  134. 
» People  v.  Sisson,  «8  111.  335. 
lOHaines  v.  Sch.  Diet.  No.  6,  41  Me.  246. 


•92  PUBLIC   SCHOOL  LAW. 

school-house  site  for  a  school-house  for  district  W.,  and  also  for 
the  purpose  of  voting  for  or  against  issuing  bonds  to  erect  or 
purchase  a  school-house  for  said  district,"  is  not  invalid,  al- 
though the  amount  of  bonds  is  not  named.1  A  notice  that 
•election  would  be  held  to  determine  whether  a  certain  tax 
would  be  levied  for  the  purpose  of  maintaining  a  graded 
-school,  is  in  conformity  with  Ky.  act  of  1854.8  Under  Tex. 
act  authorizing  special  elections  for  supplementing  school  fund 
or  building  school-houses,  the  notice  is  sufficient  if  it  shows  that 
.a  tax  will  be  imposed  for  school  purposes.3  A  notice  of  elec- 
tion for  tax,  posted  on  three  corners  of  two  cross-roads,  in  Cal., 
is  a  posting  in  three  public  places  ;*  and  notice  must  state  time 
at  which  election  will  be  held,  in  conformity  with  general  laws 
in  Cal.6  A  vote  to  raise  a  sum  to  remove  and  repair  school- 
Louse  is  within  the  statute  to  raise  money  "for  erecting  and 
repairing  "  school  houses.6  An  election  of  director  at  a  build- 
ing rented  for  school  purposes,  although  the  district  owned  a 
school-house  near  by,  no  one  having  been  prejudiced  by  the 
•election  at  that  place,  was  held  valid  ;7  and  it  is  no  objection  to 
the  election  of  trustees,  that  the  meeting  was  held  without  the 
boundaries  of  the  district.8  The  closing  of  polls  prematurely 
•will  not  defeat  unless  it  works  an  injustice.9 

§75.  Funds,  apportionment. — In  creating  Logan  out  of 
Weld  county,  Col.,  Weld  county  is  entitled  to  retain  the  whole 
school  fund  belonging  to  it  before  the  division.10  It  was  held 
that  the  school  trustees  of  one  township  were  liable  to  those  of 
another  for  money  of  the  former,  and  ordered  by  the  county 


i  People  v.  Sisson,  98  HI.  335. 
sWilliamstown  G.  F.  Sch.  v.  Webb,  (Ky.)  12 

S.  W.  298. 
•Reynolds  L.  &  C.  Co.  v.  McCabe,  72  Tex.  57. 

*  People  v.  Lansing,  55  Cal.  393. 

*  People  v.  Searle,  52  Cal.  71,  620. 


«Bump  v.  Smith,  11  N.  H.  48. 
i  Wakefield  v.  Patterson,  25  Kas.  709. 
8 Mayer  v.  Crispell,  28  Barb.  (N.  Y.)  54. 
»  Holland  v.  Davies,  36  Ark.  446. 
10  Cook  v.  Sch.  Dist.,  12  Col.  453. 


FUNDS,  APPORTIONMENT.  93 

board  to  be  paid  to  the  treasurer  of  the  former,1  and  a  district 
carved  out  of  an  older  one  is  entitled  to  &pro  rata  share  of  the 
state  appropriation  for  the  current  year  ;2  but  where  statute 
makes  no  provision  for  apportionment,  and  the  officers  follow 
the  statute,  mandamus  will  not  issue  to  compel  an  equitable 
division,3  and  an  action  by  a  district  in  Mo.,  against  another 
carved  in  part  out  of  the  first,  for  part  of  school  revenues,  cannot 
be  maintained.4  Where  a  new  district  is  made  after  apportion- 
ment of  the  fund  among  the  counties  on  the  previous  year's 
enumeration,  the  new  district  cannot  compel  the  old  district  to- 
draw  a  warrant  on  the  county  treasurer  for  its  claim  to  a  pro- 
portion of  the  fund  ;5  and  where  there  is  no  privity  between  the 
boards  of  two  districts,  one  cannot  recover  from  the  other  taxes 
erroneously  received  by  it  belonging  to  former.6  In  Me.,  a 
district  cannot  maintain  a  suit  for  the  money  assigned  by  the 
town  for  the  schools  in  that  district  against  their  school  agent, 
although  he  has  received  it  of  the  town  ;7  and  where  county  su- 
perintendent has  to  first  apportion,  an  action  cannot  be  main- 
tained for  the  amount  until  so  apportioned  ;8  and  acquiescence 
will  prevent  reopening  an  apportionment  and  recovery  on  old 
claim.9  The  legislature  may  divide  townships  and  their  school 
funds.10  In  Ind.  money  from  the  rent  of  unsold  sixteenth  section 
should  be  paid  into  the  county  treasury  ;  a  township  trustee  has 
nothing  to  do  with  it,  except  so  much  of  it  as  may  be  appor- 
tioned to  such  parts  of  his  township  as  are  within  the  congres- 
sional township,11  and  where  part  of  township  is  formed  into  a 
new  one,  in  Ind.,  and  it  brings  mandamus  to  compel  the  county 


i  Trustees  v.  Trustees,  81  111.  470. 

aLower  A.  Sch.  Dist.  v.  Sch.  Disk,  91  Pa.  St. 

182. 

*  State  v.  Sch.  Dist.,  90  Mo.  395. 
4 Sch.  Dist.  v.  Sch.  Dist.,  18  Mo. 
estate  v.  Sch.  Dist.,  (Mo.)  2  S.  1 

.  Bd.  v.  Sch.  Dist.  Bd.,  44  O.  St.  278. 


.  App.  2 
W.  420. 


T  Sch.  Dist.  v.  Brooks,  23  Me.  543. 

8  Sch.  Dist.  v.  Sch.  Dist.,  17  Neb.  177. 

»Sch.  Dist.  v.  Tp.  Riverside,  (Mich.)  34N.W.. 

"Greenleaf  v.  Tp.  Trs.,  22  111.  236. 
"Davis  v.  Comm'rs,  44  Ind.  38. 


•94 


PUBLIC   SCHOOL   LAW. 


auditor  to  issue  a  warrant  for  its  share  of  taxes  assessed  by 
original  township,  the  latter  is  not  a  necessary  party  ;x  and  the 
dog-tax  fund  must  be  apportioned  among  the  schools  of  the 
township,  and  cannot  be  used  to  employ  a  teacher  in  a  single 
school  district,  or  used  in  advance  of  the  general  apportionment 
for  the  year.2  Laws  1858,  ch.  52,  §32,  Iowa,  directing  divi- 
sion of  one-half  of  the  school  fund  in  equal  amounts  among  all 
the  school  districts  in  the  county,  is  unconstitutional  and  void.3 
Under  Yt.  Law  1888,  ch.  12,  §  233,  a  district  cannot  sue  a  town 
for  money  paid  to  other  districts  by  order  of  selectmen.* 

§76.  Funds,  apportionment. — Where  treasurer's  books 
show  that  he  has  money  belonging  to  a  district  that  he  has  not 
disbursed,  to  maintain  an  action  on  his  bond  for  conversion  an 
apportionment  to  the  district  does  not  have  to  be  proven.6 
The  Ky.  act  of  1874  —  attempting  to  empower  the  commis- 
sioner in  counties  to  draw  "the  bonded  surplus  of  school  fund 
in  the  state  treasury  to  the  credit  of  his  county,"  etc. — is  un- 
constitutional.6 The  state  superintendent  may  consider  pay- 
ment made  to  a  parish  under  an  erroneous  apportionment  when 
he  makes  a  proper  apportionment.7  The  Mich,  constitution 
provides  that  certain  revenues  shall  be  applied  to  "the  extin- 
guishment of  the  state  debt "  ;  the  debt  is  to  be  considered  "ex- 
tinguished "  when  there  is  money  enough  in  the  state  treasury 
not  subject  to  other  claims,  to  pay  it,  even  though  it  has  not 
matured  and  has  not  been  actually  paid.8  Township  board  can- 
not apportion  money  collected  for  the  erection  of  a  school-house 
in  one  sub-district,  between  the  two  new  districts  into  which  the 
same  has  been  divided  since  the  assessment.  The  Mo.  law, 


iTowle  v.  State,  (Ind.)  ION.  E.  941. 
SMaloy  v.  Madget,  47  Ind.  241. 
8  Diet.  Tp.  v.  County  Judge,  13  Iowa,  250. 
*  Sen.  Dist.  v.  Town  of  B.,  (  Vt.)  22  A.  570. 


*Dist.  Tp.  v.  Esperet,  (Iowa)  39  N.  W.  809. 
•Auditor  v.  Holland,  14  Bush  (Ky.)  147. 
i  State  v.  Fay,  36  La.  An.  241. 
8  Aud.  Gen.  v.  State  Treasurer,  45  Mich.  161. 


FUNDS,  APPORTIONMENT. 


95 


§  25,  provides  a  remedy  for  inequality  of  application  ;*  and  in 
Neb.  a  treasurer  cannot  rightfully  demand  moneys  belonging  to 
his  district  from  the  county  treasurer,  except  upon  a  warrant  of 
the  director,  countersigned  by  the  moderator  ;2  the  county  treas- 
urer is  not  authorized  to  pay  out  funds  to  the  credit  of  the 
county  school  fund,  until  they  have  been  duly  apportioned  by 
county  superintendent.8  The  inmates  of  Orphans'  Home,  Car- 
son City,  Nev.,  not  having  public-school  privileges,  are  not  to 
be  counted  as  part  of  the  children  of  Ormsby  county  in  making 
the  apportionment  under  the  constitution,3  and  under  the  stat- 
utes, one-tenth  of  the  property  tax  in  Ormsby  county  in  Nev., 
in  1863,  levied  for  the  county  purposes,  not  including  building 
purposes,  should  be  set  off  for  the  school  fund  in  lieu  of  10  per 
cent,  of  county  property  tax  required  to  be  so  set  off  by  law, 
and  one-tenth  of  the  tax  of  80  cents  on  $100,  levied  in  1864  in 
said  county  for  general  county  purposes  and  a  contingent  fund, 
should  also  be  set  off  in  like  mariner.*  Under  Kev.  Stat.  N.  H., 
ch.  72,  the  power  of  the  selectmen  to  apportion  school-money 
among  the  districts  is  to  be  exercised  from  time  to  time,  as 
changes  in  the  district  may  require  ;5  money  apportioned  may  be 
held  by  trustees  for  the  benefit  of  the  district,  even  if  it  is  after- 
ward abolished.6  The  act  of  1850  —  as  to  incorporated  orphan 
asylums,  except  in  the  city  of  New  York  —  entitles  them  to 
share  in  the  distribution  of  all  moneys  raised  in  their  respective 
cities  or  received  by  the  board  of  education  for  school  purposes, 
except  moneys  which  are  received  from  the  state  for  the  school 
fund,  the  appropriation  of  which  is  fixed  by  art.  9,  §  1,  of  the 
constitution  of  184:6.r 


iRice  v.  McClelland,  58  Mo.  117. 

2  Donnelly  v.  Durass,  11  Neb.  283. 

8  State  v.  Dnvey,  (Nev.)  12  P.  910. 

4Trs.  Sen.  Dist.  v.  Co.  Comm'rs,  1  Nev.  334. 


6Sch.  Dist.  v.  Sanborn,  25  N.  H.  (5  Fost.)  34. 
«Sch.  Dist.  v.  City  Concord,  (N.  H.)  9  A.  630. 
7  St.  Patrick's  Orphan  Asylum  v.  Bd.  Ed.,  34 
How.  (N.Y.)Pr.  227. 


96  PUBLIC   SCHOOL    LAW. 

§  77.  Funds,  apportionment. — Laws  N.  Y.  1864,  ch.  555, 
art.  2,  does  not  confer  upon  the  superintendent  of  public  in- 
struction power  to  determine  an  appeal  from  an  apportionment 
by  the  board  of  town  auditors  under  act  of  1870.  Laws  N.  Y. 
1870,  ch.  591,  authorized  the  town  of  H.  to  elect  a  treasurer  to 
receive  moneys  from  the  sale  of  lands,  and  that  so  much  of  the 
interest  as  might  be  deemed  necessary  for  the  common  schools 
should  be  apportioned  among  the  several  districts  as  the  public- 
school  moneys  of  the  state  were  apportioned,  and  the  apportion- 
ment certified  to  the  treasurer  by  the  board  of  town  auditors. 
When  the  board  of  town  auditors  had  apportioned  the  moneys 
of  certain  years,  mandamus  would  not  lie  to  compel  them  to 
modify  their  apportionment  to  conform  to  the  corrections  sub- 
sequently made  by  the  superintendent  of  public  instruction  -,1 
and  the  provision  of  act  of  1848  has  reference  only  to  the 
money  raised  for  the  support  of  schools  in  and  by  the  city  of 
Brooklyn.2  Under  §  24  of  the  act  to  establish  the  school  fund, 
providing  that  township  tax,  levied  for  the  continuation  of  the 
schools  after  the  state  tax  has  been  exhausted,  shall  be  applied 
only  to  the  payment  of  the  teachers  in  the  proper  townships, 
the  board  cannot  make  distribution  in  any  other  proportion 
than  that  authorized  by  statute,  although  it  has  not  funds  to 
keep  a  school  in  each  sub-district  for  seven  months  without  so 
doing.3  Mandamus  will  not  lie  to  compel  the  payment  by 
treasurer  of  IT.  county  to  M.  county  of  taxes  of  1884  collected 
by  U.  county ;  and  the  board  provided  for  by  act  1885  to  de- 
termine the  proportion  of  net  indebtedness  to  be  assessed  by 
M.  county  had  no  right  to  determine  the  rights  of  the  two 

1  People  v.Bd. Town  Ands.,(N.Y.)  27N.E.  968.    I    8Bd.  Ed.  v.  Cheney,  5  Ohio  St.  67. 

2  People  v.  Bd.  Ed.,  13  Barb.  (N.  Y.)  400.          | 


FUNDS,    APPORTIONMENT.  97 

counties  to  the  school  taxes  for  1884.1  The  state  appropriation 
for  schools  is  based  upon  the  taxable  inhabitants  of  each  dis- 
trict, and  the  amount  to  be  assessed  by  the  directors  of  a  dis- 
trict is  based  upon  the  amount  of  the  state  appropriation  for 
that  year.2  On  the  subdivision  of  a  district,  it  is  the  duty  of  a 
county  judge  to  apportion  its  school  funds  among  the  new  dis- 
tricts formed,  under  Laws  Tex.  1884,  ch.  25,  p.  46.3  Order  of 
apportionment  does  not  have  to  be  filed  in  forming  a  new  dis- 
trict.* Mandamus  lies  to  compel  the  county  superintendent  to 
make  the  proper  order  for  money  belonging  to  any  district ; 
and  this  is  so  where  an  act  had  been  passed  changing  a  district 
to  another  county,  and  school-moneys  had  previously  become 
due  the  district  from  the  former  county.5  Under  Iowa  St.  1885, 
" credits"  in  connection  with  "assets"  include  houses,  sites,  fur- 
niture and  fixtures,  school-tax  levy,  county  school  tax  and  cash, 
less  the  liabilities  of  the  district.6  Where  districts  were  divided 
before  Mich,  act  1891,  the  old  district  remained  liable  for  all 
debts  and  retained  title  to  all  the  property.7 

§78.  Funds,  apportionment. — A  district  detached  from 
one  county  and  attached  to  another,  in  Ark.,  (the  children  of 
the  detached  district  having  been  included  in  the  enumeration 
of  the  former,)  must  be  included  in  the  apportionment  made  by 
the  county  court.8  Counties  are  owners  of  the  school  funds 
until  they  are  accredited  to  the  several  school  districts.9  The 
board  of  education  of  San  Francisco  has  no  power  to  divert  the 
school-money  to  any  purposes  not  authorized.10  The  treasurer 
cannot  refuse  to  pay  to  one  school  district  the  apportionment 


i  County  of  Morrow  v.  Hendrix,  (Oreg.)  12  P. 

806. 

a  Alter  v.  McBride,  7  Pa.  St.  147. 
*  Porter  v.  State,  78  Tex.  591. 
4  State  v.  Eaton,  11  Wis.  29. 
&  Brown  v.  Nash,  1  Wy.  Ter.  85. 

—  7 


«Bd.  Pelican  v.  Bd.  Wis.,  51  N.  W.  871. 
i  City  Winona  v.  Sch.  Diet.,  13  Mich.  14. 
SMerrittv.  Merritt,  (Ark.)  16  S.  W.  K.  287. 
»Cooke  v.  Sch.  Dist.,  12  Col.  453. 
10  Barry  v.  Good,  89  Cal.  215. 


98 


PUBLIC   SCHOOL   LAW. 


as  part  of  the  primary  fund  where  it  is  the  only  district  entitled 
thereto  and  the  superintendent  of  public  instruction  makes  the 
apportionment  under  Mich.  St.,  §  5029,  but  the  township  clerk 
does  not.1  In  N.  H.  a  district  situated  in  two  or  more  towns  is 
entitled  to  its  proportion  of  the  money  raised  ;2  and  a  district 
can  claim  its  share  of  the  funds,  though  no  school  is  kept.3  An 
action  on  a  demand  belonging  to  the  district  must  be  brought 
in  the  name  of  the  district  ;4  and  a  district  may  maintain  a  bill 
in  equity  against  another  which  retains  a  tax  claimed  by  the 
former.6  The  parish  treasurer,  in  La.,  may  demand  from  the 
collector  the  fund  due  to  his  parish,  and  sue  to  recover  it  ;6  and 
one  board  may  recover  its  apportionment  illegally  obtained  by 
another  board,  and  when  invested  the  property  may  be  recov- 
ered.7 The  superintendent  of  a  new  town  formed  out  of  a  part 
of  an  old  one  is  entitled  to  sue  for  moneys  that  may  have  come 
into  the  hands  of  the  treasurer  of  the  latter,  and  which  belong 
to  those  parts  of  districts  within  the  limits  of  the  new  town.8 

§  79.  Funds,  appropriation. — Where  there  is  an  implied 
appropriation  for  a  certain  purpose,  funds  will  not  be  diverted 
by  mandamus.9  The  Ind.  act  of  Feb.  24,  1871,  in  relation  to 
the  distribution  of  school  funds  to  the  several  counties,  held  to 
be  valid.10  An  action  for  money  had  and  received  is  the  only 
proceeding,  by  one  school  district  against  another,  for  money 
belonging  to  the  plaintiff  and  wrongfully  in  the  defendant's  pos- 
session.11 Under  Mich.  C.  L.,  §  3647,  a  town  treasurer  can  pay 
school-moneys  only  to  the  district  assessor,  and  only  on  the 
warrant  of  the  proper  officers.11  In  Minn,  a  district  treasurer 


1  Moiles  v.  Watson,  60  Mich.  415. 

2  Sell.  Dist.  v.  Twitchell,  63  N.  H.  11. 

3  Sell.  Dist.  v.  Merrill,  59  N.  H.  367. 

4  Donnelly  v.  Duras,  11  Neb.  283. 
«  Sch.  Dist.  v.  Dean,  17  Mich.  223. 
«Hendricks  v.  Bobo,  12  La.  Ann.  620. 

i  East  Carroll  Sch.  Bd.  v.  Union  Sch.  Bd.,  36 
La.  Ann.  806. 


SGassville  v.  Morris,  14  Wis.  440. 
9Zurtman  v.  State,  100  Ind.  380. 
10  Shoemaker  v.  Smith,  37  Ind.  222;  Fulwiler 

v.  Zern,  38  Ind.  208. 

"  Midland  Sch.  Dist.  v.  Sch.  Dist.  No.  5,  40 
Mich.  551. 


FUNDS,  APPROPRIATION. 


99 


cannot  pay  a  judgment  out  of  moneys  applicable  only  to  other 
specific  purposes.1  The  Mo.  Constitution  of  1875,  art.  10,  §  19, 
abrogated  the  continuing  appropriations  for  the  state  normal 
schools  made  by  the  act  of  1875  ;3  and  the  inhabitants  of  the 
school  township  for  the  time  being  cannot  dispose  of,  or  in  any 
way  impair,  the  township  school  fund  ;8  and  the  Neb.  State  Uni- 
versity regents  under  the  charter  cannot  dispose  of  the  endow- 
ment fund  or  the  fund  accruing  from  •§  mill  tax,  in  absence  of 
statutory  legislation.*  The  town  system  of  1ST.  H.  authorizes 
the  annual  meeting  to  direct  how  the  school-money  shall  be  as- 
signed.5 Payment  of  a  county  superintendent's  order  for  the 
state  appropriation  for  public  schools  will  not  be  compelled 
where  the  money  has  been  applied  for  school  purposes  in  the 
preceding  year.6  The  common  council  of  a  city  cannot  appro- 
priate money  voted  by  the  inhabitants  to  any  other  purpose  ;7 
and  where  there  is  no  proceeding  pending  before  the  superin- 
tendent of  common  schools,  he  is  not  authorized  to  make  an 
order  directing  the  commissioners  of  a  town  to  retain  in  their 
hands,  to  abide  such  order  as  may  be  thereafter  made,  the 
money  about  to  be  apportioned,  pursuant  to  law,  to  a  school 
district  for  teachers'  wages.8  An  act  of  the  legislature  directed 
that  the  amount  of  a  judgment,  recovered  against  former  trustees 
of  a  school  district,  for  teachers'  wages,  should  be  levied  and 
collected  by  tax,  and  the  officers  of  the  district  had  neglected  to 
execute  the  law  ;  the  superintendent  of  common  schools  was  not 
authorized  to  prohibit  the  school-moneys  thereafter  apportioned 
under  the  general  laws  of  the  state,  from  being  paid  over  to  the 
trustees.8 


1  Sch.  Dist.  v.  Roach,  43  Minn.  495. 

2  State  v.  Holladay,  66  Mo.  385. 

3  Veal  v.  Chariton,  15  Mo.  412. 

4  State  v.  Babcock,  17  Neb.  610. 


e  Sch.  Dist.  v.  Prentiss,  (N.  H.)  19  A.  1090. 

6  State  v.  Sheridan,  42  N.  J.  L  64. 

7  Stare  v.  Hammell,  31  N.  J.  L.  446. 

8 Bennett  v.  Burch,  1  Den.  (N.  Y.)  141. 


100  PUBLIC   SCHOOL   LAW. 

§  80.  Funds,  bonds. — In  a  suit  in  Texas  by  surety  of  treas- 
urer of  county  as  assignee  of  audited  school  claims  against  the 
county,  the  fact  that  the  treasurer  had  turned  over  special  school 
funds  to  him  who  is  surety  on  general  bond,  and  that  the  treas- 
urer had  defaulted,  will  not  defeat  the  suit.1  La.  Acts  1872, 
abolishing  the  free-school  fund,  is  unconstitutional,  and  sale  of 
bonds  of  said  fund  thereunder  is  void.2  Act  of  legislature,  di- 
recting commissioners  of  school  fund  to  invest  same  in  bonds 
issued  to  pay  members  of  legislature,  is  void.3 

§81.  Funds;  constitution. — The  act  of  Fla.  1885,  direct- 
ing county  treasurer  to  forward  school-money  to  state  treasurer, 
for  apportionment  by  state  superintendent,  is  contrary  to  Const., 
art.  8,  §  7,  which  provides  for  the  apportionment  and  distribu- 
tion in  the  counties  in  proportion  to  children.*  Act  Ky.,  April 
19,  1886,  "  to  establish  a  public  school  in  Morganfield,  in  Union 
county,"  the  object  being,  by  additional  taxation  within  the 
district  thus  created,  to  have  better  school  accommodations  than 
its  annual  share  of  the  common-school  fund  would  afford,  is  not 
unconstitutional.5  The  act  of  1865,  Ind.,  that  county  auditor's 
report  of  amount  of  school  fund  when  approved  by  superintend- 
ent of  public  instruction  shall  be  conclusive,  is  unconstitutional, 
because  it  may  be  the  means  of  not  securing  all.*  An  act  of  leg- 
islature which  in  effect  makes  a  donation  of  a  portion  of  the  fund 
for  another  purpose  than  common  school,  is  void.7  The  Ind. 
school  laws  of  1852,  consolidating  the  several  school  funds  into 
a  common  fund,  violates  article  8,  §  7,  of  the  constitution  of  the 
state,  and  is  void.8  (See  also  "Sectarian  Schools.") 


i Co.  Caldwell  v.  Crocket,  (Tex.)  4  S.  W.  607. 
8  Sun  Mutual  Ins.  Co.  v.  Bd.  of  Liquidations, 

31  La.  Ann.  175. 
'State  v.  Board,  4  Kas.  261. 
*  State  v.  Barnes,  22  Fla.  8. 


6Bd.  Trs.  Morganfield  v.  Thomas,  (Ky.)  15 

S.  W.  670. 

e Howard  Co.  v.  State,  (Ind.)  22  N.  E.  255. 
'  People  v.  Allen,  42  N.  Y.  404. 
8  State  v.  Springfield,  6  Ind.  83. 


FUNDS;   FINES. 


101 


§82.  Funds;  fines. — (See  also  "Funds,  Liquor.")  In 
Iowa,  the  county  where  a  forfeited  appearance  bond  is  collecti- 
ble is  entitled  to  the  money  for  its  school  fund,  under  §  3370, 
Code  ;x  and  in  Dakota,  under  act  of  1875,  all  fines  for  offenses 
committed  in  the  city  of  Yankton  shall  be  paid  into  the  city 
treasury  to  the  credit  of  the  board  of  education.8  Fines  belong 
to  the  school  districts,  and  prosecuting  officer  cannot  retain  the 
fees  out  of  them,  in  Iowa.3  All  such  fines  in  last  part  of  §  5, 
art.  8,  Neb.  Const.,  applies  only  to  those  arising  under  the  rules, 
by-laws,  etc.,  set  out  in  the  foregoing  part  of  section.*  The  fines 
for  breaches  of  penal  laws  are  part  of  the  school  fund  in  Wis.,5 
and  this  fund  belongs  to  the  state,  and  an  action  is  properly 
brought  in  its  name  for  such,  in  the  absence  of  statute  ;5  and  the 
act  of  1891,  giving  two-thirds  of  a  fine  to  informer,  is  constitu- 
tional ;  the  proceeds  for  school  means  the  remainder  after  lawful 
deductions.6  The  Neb.  law  of  1877,  p.  171,  relating  to  liquor 
licenses,  contravenes  §  5,  art.  8,  Const.,  and  is  void  ;7  this  clause 
of  the  constitution,  giving  license-moneys  to  the  use  of  "com- 
mon schools  in  the  respective  subdivisions  where  the  same  may 
accrue,"  passes  the  same  to  the  school  fund  of  the  cities  instead 
of  the  counties.7  The  county  treasurer  may  maintain  a  civil  ac- 
tion to  recover  for  the  school  fund  of  the  county,  moneys  re- 
ceived by  towns  and  cities  of  the  second  class  for  license  to  sell 
liquor ;  this  power  is  implied  in  his  authority  to  collect.8  The 
penalty  for  failure  to  forward  freight  imposed  by  N.  C.  Laws 
1874-5,  ch.  240,  is  not  given  to  the  county  school  fund  by  N.  C. 
Const.,  art.  9,  §  5  ;9  under  Const.  K  C.,  penalties  for  non-com- 


i  Lucas  Co.  v.  Wilson,  61  Iowa,  141. 

«  Yankton  Co.  v.  Faulk,  1  Dak.  348. 

'  Woodward  v.  Gregg,  3  Greene  ( Iowa)  287. 

*  State  v.  Hein»,  14  Neb.  477. 

«State  v.  Casey,  5  Wis.  318. 

estate  v.  DeLano,  (Wis.)  49  N.  W.  808. 


*State  v.  McConnel,  8  Neb.  28;  Hastings  v. 

Thome,  8  Neb.  160. 
s  City  of  Tecumseh  v.  Phillips,  5  Neb.  305- 

White  v.  City  of  Lincoln,  5  Neb.  505. 
•  Katzenstein  v.  R.  &  G.  R.  R.  Co.,  84  N.  C.  688. 


102 


PUBLIC   SCHOOL   LAW. 


pliance  with  the  provision  of  §  1959  should  be  paid  to  the  school 
fund.1  In  Ind.  personal  effects  unclaimed,  and  found  by  coro- 
ner on  dead  bodies,  belong  to  common-school  fund  of  county,2 
and  the  Ind.  act  of  1844  as  to  funds  from  estrays  belonging  to 
common-school  fund  is  not  repealed  by  act  of  1881. 3  The  board 
of  education  cannot  be  substituted  as  relator,  or  as  party  plain- 
tiff, in  an  action  for  penalty  brought  by  a  private  person  in 
the  name  of  the  state,  the  right  to  sue  being  vested  solely  in 
the  state.4 

§  83.  Funds,  interest. — The  interest  of  the  public  moneys 
in  the  United  States,  which  by  the  act  of  1836  is  appropriated 
to  the  use  of  the  common  schools,  is  not  a  part  of  the  proceeds 
of  the  school  fund,  within  the  proviso  to  §  9  of  the  act  of  1827, 
entitled  "An  act  to  provide  for  the  support  of  common 
schools."6 

§  84.  Funds,  investing. — School  boards  in  Neb.  may  in- 
vest in  U.  S.  three-per-cent.  bonds,  and  the  premium  paid  for 
same  should  be  paid  from  permanent  school  fund ;  but  when 
so  invested  they  are  not  to  be  changed."  Mo.  Sess.  Acts,  1865, 
p.  16,  §  6,  providing  that  the  purchase-money  arising  from  the 
sale  of  the  stock  held  for  school  purposes  by  the  state  might  be 
paid  in  the  bonds  and  coupons  of  the  state,  is  not  unconstitu- 
tional.7 Expending  the  proceeds  of  the  16th  section  of  lands 
for  the  exclusive  use  of  the  township  in  which  the  land  lies,  is  a 
sufficient  compliance  with  the  act  of  Congress;  nor  is  a  state 
bound  to  provide  any  additional  fund  for  a  township  receiving 
the  bounty,  even  though  it  does  for  other  parts  of  the  state,8 
and  the  proceeds  of  the  sale  in  each  township  becomes  a  trust 


1  State  v.  K.  R.,  108  N.  C.  24. 

2  State  v.  Marion  Co.  Comm'rs,  85  Ind.  489. 
'TippecanoeCo.  Comm'rs  v.  State,  92  Ind.  353. 
*  State  v.  Marietta  &c.  R.  R.,  108  N.  C.  24. 


estate  v.  Jericho,  12  Vt.  127. 

«/«  re  School  F.,  15  Neb.  684. 

estate  v.  Bank  of  State,  45  Mo.  528. 

s  Springfield  v.  Quick,  22  How.  (lud.)  56. 


FUND,    LOAN. 


103 


fund  to  be  applied  to  the  use  of  the  schools  in  that  township, 
and  not  elsewhere.1 

§85.  Funds,  liquor. — Where  parts  of  three  districts  are 
within  the  limits  of  an  incorporated  village,  the  moneys  re- 
ceived for  liquor  licenses  will  be  divided  equally  between  them 
in  Neb  ;2  and  where  a  village  is  partly  in  three  districts  and 
school -houses  of  each  outside  of  town,  and  $1,000  is  derived 
from  liquor  licenses  in  the  town,  each  is  entitled  to  equal  parts 
of  the  money.3 

§86.  Funds,  liquor.  —  Under  the  two  acts  N.  M.  1891, 
it  was  held  that  license-money  for  liquors  should  be  placed  to 
the  credit  of  school  districts  and  not  to  that  of  county;4  and  in 
Neb.  the  money  received  for  liquor  licenses  issued  by  county 
board  belongs  exclusively  to  county  fund  for  common  schools 
and  not  to  district  in  which  the  liquors  are  sold.5  Where 
$1,000  was  required  to  be  paid  in  Neb.  for  liquor  license  it  was 
held  that  the  whole  belonged  to  the  district.6 

§  87.  Fund,  loan. — Selling  under  a  school-fund  mortgage 
for  a  sum  materially  exceeding  the  amount  due,  is  a  material 
irregularity.7  Laws  1864,  ch.  118,  §  1,  Iowa,  reduced  the  rate 
of  interest  on  loans  after  Jan.  1st,  1864,  whether  before  or 
after,  from  ten  to  eight  per  cent.8  The  statute  provides  for 
loans  of  the  school  fund  to  a  certain  class  of  railroad  companies  ; 
the  commissioners  of  the  fund  shall  draw  their  warrant  if  they 
are  satisfied  that  the  work  has  been  done ;  their  determination 
is  a  final,  judicial  decision,9  and  whether  the  company  is  such 
that  their  application  can  be  entertained,  is  a  fact  upon  which 
their  determination  is  not  final  ;9  and  in  this  case  the  warrant 


1  State  v.  Springfield,  6  Ind.  83. 

2  State  v.  White,  ( Neb.)  45  N.  W.  631. 

» State  v.  Broadboll,  (Neb.)  44  N.  W.  186. 
<Bd.  Ed.  v.  Laforge,  (N.  M.)  27  P.  616. 
&  State  v.  Fenton,  (Neb.)  45  N.  W.  464. 


'State  v.  Wilcox,  17  Neb.  219. 

7  Arnold  v.  Gaff,  58  Ind.  543. 

8  State  v.  Henderehott,  21  Iowa,  437. 

«  Houston  etc.  R.  Co.  v.  Randolph,  24  Tex.  317. 


104 


PUBLIC   SCHOOL  LAW. 


does  not  even  show  that  the  applicant  is  an  incorporation,  and 
only  corporations  can  receive  the  aid.1  Under  §  811  of  the 
Revision,  Iowa,  when  the  state  becomes  the  purchaser  under 
the  foreclosure  of  a  mortgage  executed  to  secure  a  loan  from 
the  school-fund  taxes,  a  purchaser  of  the  same  lands  from  the 
state  acquires  a  title  discharged  of  all  tax  liens.*  By  Rev.  Stat. 
Ind.,  1881,  §  4326,  the  counties  are  liable  for  the  public  school 
fund  intrusted  to  them,  and  the  annual  interest ;  by  §§  4390, 5904, 
it  is  the  duty  of  the  county  auditor,  when  premises  mortgaged 
to  secure  a  loan  of  such  funds  fail  to  sell  for  sufficient,  to  bring 
suit  on  the  notes  in  the  name  of  the  state ;  the  county  might 
pay  the  deficiency  before  the  auditor  brought  suit  ;s  and  where 
mortgaged  lands  to  secure  loans  of  school  funds  are  sold  and  the 
county  auditor  bids  in  the  land  on  account  of  the  fund,  no  deed 
to  the  state  is  required,  but  the  land  must  be  appraised  and  sold 
before  a  suit  will  lie  on  the  mortgage  notes  for  deficiency.* 

§  88.  Funds,  loan. — A  surety  who  signs  a  note  given  for 
a  loan  of  the  common-school  fund,  made  by  the  county  auditor, 
is  not  released  by  reason  of  the  loan  not  being  secured  by  a 
mortgage  of  real  estate.6  By  Ind.  Laws  1833,  89,  §  96,  it  is 
provided  that  a  school  commissioner  should  not  loan  to  any 
one  applicant  a  greater  amount  than  $300 ;  a  loan  for  a  greater 
sum  than  $300  was  void,  and  the  mortgage  was  void.6  When 
a  county  in  Ind.  has  loaned  school  funds  on  a  mortgage  and 
bought  the  property  in  a  foreclosure,  and  at  subsequent  sale  it 
brings  more  than  debt,  the  county  is  entitled  to  be  reimbursed 
for  interest  advanced  and  paid.7  A  "bonafide  purchaser  of  land 
incumbered  by  a  mortgage  given  to  secure  a  loan  of  school 


1  Houston  etc.  R.  Co.  v.  Randolph,  24  Tex.  317. 
*Helphery  v.  Ross,  19  Iowa,  40;  Jasper  Co.  v. 

Rodgers,  17  Iowa,  254. 
•Lopp  v.  Woodward,  (Ind.)  27  N.  E.  575. 


*  Clark  v.  State,  (Ind.)  10  N.  E.  125. 
6Scotten  v.  State,  51  Ind.  52. 

«  State  v.  State  Bank,  5  Ind.  353. 

*  Bd.  Comm're  v.  State,  122  Ind.  333. 


FUNDS,  LOAN.  105 


funds,  which  was  never  acknowledged  or  proved,  as  the  statute 
requires,  to  admit  a  mortgage  to  record,  but  was  nevertheless 
recorded,  is  charged  with  constructive  notice  of  the  existence  of 
such  mortgage  ;*  and  a  mortgage  to  secure  a  loan  of  school  funds 
upon  land  on  which  there  is  a  prior  incumbrance,  known  to  the 
auditor  who  had  charge  of  the  fund,  is  valid  as  against  the 
borrower,  notwithstanding  loans  should  be  made  only  on  unin- 
cumbered  land.1  The  act  of  1861,  Ind.,  which  directs  a  three- 
weeks  notice  only,  of  foreclosure  sales,  applies  to  mortgages 
executed  while  the  act  of  1843  was  in  force.2  The  legislature 
Jias  the  power  to  direct  in  what  'manner  the  school  funds  shall 
be  loaned.3  A  declaration  on  a  note  given  for  "school-money," 
on  the  school  law  of  1845,  must  aver  that  it  was  given  for 
-school-money,  and  claim  the  penalty ;  otherwise  only  ordinary 
interest  is  recoverable.*  The  act  1865,  ch.  537,  §  17,  Wis., 
provides  that  in  a  certain  contingency  drainage-money  in  the 
town  treasury  "  may  be  applied  under  the  direction  of  the  board 
of  supervisors  " ;  the  money  must  be  paid  into  the  treasuries  of 
the  school  districts  and  expended  under  the  direction  of  the  dis- 
trict boards,  and  not  of  the  supervisors  ;6  if  the  supervisors  im- 
properly loan  such  funds,  taking  a  due-bill  therefor,  and  transfer 
the  due-bill  to  the  school  districts,  instead  of  paying  the  funds 
into  the  district  treasuries,  the  districts  may  maintain  an  action 
upon  the  due-bill  against  the  makers.5 

§  89.  Funds,  loan. — Pending  a  litigation  between  the  board 
of  education  of  a  township  and  a  special  school  district,  as  to 
the  custody  and  control  of  a  fund  in  the  township  treasury,  the 
board  permitted  the  treasurer  to  use  the  fund  in  his  business  on 


iDeming  v.  State,  23  Ind.  416. 
5  Webb  v.  Moore,  25  Ind.  4;  Jones  v.  Hop- 
kins, 26  Ind.  450. 


'Bush  v.  Shipman,  5  111.  (4  Scam.)  186. 

*  Sexton  v.  Sch.  Comm'rs,  19  111.  51. 

*  Sen.  Dists.  y.  Edwards,  46  Wis.  150. 


106 


PUBLIC   SCHOOL  LAW. 


his  agreeing  to  pay  interest  thereon ;  when  the  treasurer's  term 
expired  the  loan  was  renewed  and  a  note  with  sureties  taken. 
Such  loan  contravened  public  policy  and  the  statute ;  the  sureties 
thereon  were  not  estopped  from  setting  up  the  illegality  of  the 
transaction  as  a  defense ;  in  the  absence  of  statute,  the  board 
had  no  power  to  ratify  a  contract  made  in  violation  of  law.1 
In  Ind.,  under  §§79,  81,  82,  of  the  act  of  March  5th,  1855, 
relating  to  school-fund  mortgages,  a  county  auditor  might  sell 
the  land  under  the  mortgage,  or  recover  judgment  on  the  debt, 
or  both,  or  bring  an  action  to  recover  on  the  debt  and  to  fore- 
close the  mortgage,  but  the  auditor  could  not  then  sell  the  land 
under  the  mortgage,  it  being  merged  in  foreclosure.2  Where  a 
county  in  Ind.  loaned  the  congressional  school  fund,  and  on  de- 
fault paid  interest,  on  foreclosure  realizing  enough  to  pay  all 
due  from  the  mortgages,  the  school  fund  is  not  entitled  to  in- 
terest paid,  but  that  is  for  the  county.3 

§90.  Fund,  loan. — Under  Miss.  Acts  1854  and  1856,  the 
board  of  police  or  the  treasurer  have  the  power  to  sell  land  in- 
cluded in  the  deed  of  trust  from  the  borrower  of  the  common- 
school  fund  to  the  sureties  on  the  borrower's  note ;  and  for 
such  purchase-money  and  the  balance  due  on  the  original  note 
may,  in  renewing  the  old  note,  take  a  new  note  from  the  origi- 
nal obligors,  with  new  sureties.*  In  Mo.,  where  additional 
security  is  given  for  prior  loan,  it  relates  back  to  date  of  origi- 
nal execution  of  the  bond.5  A  mortgage  by  auditor  of  county 
for  loan  of  school  funds  to  himself  is  not  void.8  Married 
woman,  in  Ind.,  cannot  obtain  a  cancellation  of  mortgage  on 
her  land  for  loan  of  school  fund,  on  the  ground  that  it  is  a  debt 

i  Hartford  Tp.  Bd.  Ed.  v.  Thompson,  33  Ohio  6  Co.Montgomery  v.  Auchley,  (  Mo.)  4  S.W.425. 

St.  321.  c  State  v.  Levi,  99  Ind.  77,  (overruling  Ware  v. 

'Ferris  v.  Cravens,  65  Ind.  262.  v.  State,  74  Ind.  181; )  Stockwell  v.  State,. 

*  Hamilton  v.  State,  ntad.)  24  N.  E.  347.  101  Ind.  1. 
*Gainea  v.  Faris,  39  Miss.  403. 


FUND,  LOAN.  107 


of  her  husband,  because  the  auditor  is  not  a  party  in  interest.1 
In  Mo.  a  payment  of  a  school-fund  mortgage  to  a  deputy  county 
clerk,  who  failed  to  pay  the  same  into  the  county  treasury,  did 
not  release  the  mortgage  ;2  and  a  mortgage  in  Mo.  to  secure  a 
loan  of  school  funds  is  not  invalid  by  reason  of  the  clause  "for 
the  use  of  a  specified  section  of  land,"  instead  of  "for  the  use 
of  the  township  to  which  the  fund  belonged."8  111.  statute  re- 
quiring loans  of  school  funds  to  be  secured  by  mortgage,  does 
not  render  an  unsecured  note  void.*  The  riparian  commis- 
sioners have  no  power,  by  a  convenant  contained  in  a  grant  to- 
a  railroad  company,  to  discharge  a  mortgage  investment  of  the 
school  fund,  such  an  act  being  unconstitutional.5  A  loan  of 
school  fund  upon  other  security  than  that  required  is  a  misap- 
plication of  the  fund  for  which  the  trustees  are  personally 
liable,  but  the  mortgage  or  other  security  is  not  void  ;6  and  a 
mortgage  taken  by  the  county  for  the  loan  of  funds,  not  under 
the  statute,  but  good  at  common  law,  and  containing  a  power 
of  sale,  is  valid.7  The  Oreg.  act  to  provide  for  the  loaning  of 
common-school  funds,  approved  Dec.  19,  1865,  is  constitutional 
and  valid.8  Where  the  additional  security  required  in  Gross 
111.  Stat.  701,  §  60,  is  demanded  and  not  given,  the  whole 
debt  matures,  and  may  be  foreclosed.9  Where  the  statute  re- 
quires two  or  more  sureties  to  a  note  given  for  a  loan,  it  will  be- 
presumed  that  at  least  two  of  the  signers  are  sureties.10  A  per- 
son who  signs  as  surety,  after  delivery,  a  bond  under  seal  given 
to  secure  loan  of  school-moneys,  cannot  escape  liability  by 
showing  that  no  order  requiring  additional  security  was  entered. 


i  Snodgrass  v.  Morris,  (Ind.)  24  N.  E.  151. 
2Knox  Co.  v.  Goggin,  (Mo.)  16  S.  W.  684. 
» Grant  v.  Huston,  (Mo.)  16  S.  W.  680. 
*  Edwards  v.  Trs.  of  Sch.,  30  111.  App.  528. 
6  American  Dock  Imp.  Co.  v.  Sch.  Trs.,  35  N. 
J.  Eq.  181. 


«Littlewort  v.  Davis,  50  Miss.  403. 
7  Mann  v.  Best,  62  Mo.  491. 
SKubli  v.  Martin,  5  Oreg.  436. 
»Bd.  Trs.  &c.  v.  Davidson,  65  111.  125. 
10  Trs.  of  Schs.  v.  Southard,  31  111.  App.  359.. 


108  PUBLIC   SCHOOL   LAW. 

of  record,  without  also  showing  that  there  was  no  other  con- 
sideration.1 

§  91.  Fund,  loan. — The  power  of  a  township  trustee,  under 
Kev.  Stat.  Ind.,  1881,  pp.  4328,  4329,  to  rent  school  lands, 
and  to  reserve  rents  payable  in  money,  or  improvements  on  the 
land,  must  be  strictly  construed ;  and  where  a  tenant  has  un- 
dertaken improvements  greater  than  the  aggregate  rents  for 
the  remainder  of  the  term,  an  agreement  by  the  trustees  to  ex- 
tend the  term  after  its  expiration,  if  the  tenant  would  complete 
the  improvements,  is  void.8  Under  the  Miss,  act  of  Mar.  4, 
1846,  authority  is  given  to  county  treasurers  to  loan  out  the 
school  fund,  not  appropriated  by  the  school  commissioners.3 
The  fact  that  one  who  signed  a  bond  after  delivery  permitted  it 
to  remain  with  the  county  court  without  objection  for  six  years, 
would  estop  him  from  setting  up  want  of  consideration  in  an 
action  thereon  ;*  such  court  cannot  delegate  the  power  to  make 
loans,  or  to  compromise  those  already  made,  without  requiring 
the  final  approval  by  the  court  of  the  security.*  In  Miss,  the 
trustees  of  school  lands  are  authorized  to  loan  money  only 
upon  personal  security ;  and  if  a  loan  is  made  by  them  secured 
by  a  deed  of  trust,  and  lost,  they  will  be  liable.5  In  Mo., 
where  a  person  borrows  school-money  of  a  county,  and  secures 
the  payment  by  mortgage,  the  county  court  may  on  default  of 
payment  of  interest,  without  notice,  order  the  sheriff  to  sell  the 
land  according  to  the  provisions  of  the  mortgage.6  M.,  a  de- 
faulter to  the  school  fund  in  the  sum  of  $500,  agreed  with  B., 
his  debtor,  that  the  latter  should  give  his  note  for  $500  to  the 
school  fund  and  execute  a  mortgage  to  secure  it.  M.  signed 

i Montgomery  Co.v. Auchley, (Mo.)15 S.W.626.    I  *  Montgomery  Co.  v.  Auchley,  ( Mo.)  15  S.  W. 
2 Anderson  v.  Prairie  Sen.  Tp.,  (Ind.)  27  N.  626 

E.  439.  ;  SLindsey  v.  Marshall,  20  Miss.  (12  Smed.  & 

s  Murray  v.  Smith,  28  Miss.  31.  M.)  587. 

I  «Hurtv.  Kelly,  43  Mo.  238. 


FUNDS,  OFFICER. 


109 


the  note  as  surety,  and  it  was  received  by  the  school  fund  com- 
missioner and  credit  given  to  M.,  on  his  liability ;  the  mortgage 
was  never  executed ;  taking  the  note  without  the  mortgage 
could  not  be  taken  advantage  of  by  the  defendants.1  A  sale 
by  the  auditor,  of  lands  mortgaged  in  Ind.,  is  void  if  made  for 
the  payment  of  a  greater  sum  than  actually  due  ;2  and  it  makes 
no  difference  that  the  borrower  had  not  filed  the  treasurer's 
receipt  for  interest  with  the  auditor.2 

§  92.  Funds,  officer. — Where  a  school  commissioner  loans 
money  on  real  estate  to  which  the  mortgagor  had  no  title  as 
shown  from  the  public  records,  he  was  at  once  liable  on  his 
bond  for  the  full  amount  of  the  loan.8  Under  Mich.  C.  L., 
§§  2272,  7596,  district  assessor  is  the  sole  disbursing  officer  to* 
be  drawn  upon  by  the  director  for  any  money  of  the  district 
in  the  township  treasurer's  hands.*  Under  Wagn.  (Mo.)  Stat., 
1246,  1247,  the  justices  of  a  county  court  are  bound  to  issue  to 
the  township  clerk  a  warrant  for  the  amount  of  the  delinquent 
list  of  land  taxes  due  the  sub  school  districts  before  collection.5 
It  is  the  duty  of  a  school  commissioner,  on  retirement  from 
office,  to  deliver  over  to  his  successor  the  funds  held  by  him.6 
By  receiving  money  ordered  by  trustees  of  a  township  to  be 
paid  to  them,  the  directors  of  a  district  are  not  liable  to  an 
action  by  the  directors  of  another  district  claiming  it ;  it  must 
be  against  the  trustees.7  Under  the  111.  school  act  of  1865,  the 
school  commissioner  may  refuse  to  pay  money  to  a  township 
treasurer  who  has  not  filed  his  bond.8  In  111.,  township  col- 
lector must  pay  school  tax  to  township  treasurer.9  In  Mo.,  the 
county  cannot  discharge  a  surety  on  a  bond  for  the  loan  of 


1  Bremer  Co.  v.  Barrich,  18  Iowa,  390. 

2  Key  v.  Ostrander,  29  Ind.  1. 
«  People  v.  Haines,  10  111.  528. 

<Frac.  Sch.  Dist.  v.  Mallary,  23  Mich.  111. 
6  Wallendorf  v.  Cole  Co.,  45  Mo.  228. 


«  Hamilton  v.  Cook  Co.,  5  111.  519. 
*  Sch.  Dirs.  v.  Sch.  Dirs.,  36  111.  140. 
space  v.  People,  47  111.  321. 
9  People  v.  Teazel,  84  111.  539. 


' 


, 


110 


PUBLIC   SCHOOL   LAW. 


.money  upon  his  giving  his  note  with  personal  security.1  The 
^Supt.  Pub.  Inst.  Ky.  had  no  right  after  the  auditing  of  school 
commissioner's  claim  by  county  judge  to  reject  it  because  it  did 
not  show  that  the  commissioner  had  visited  the  schools.8 
Where  by  statute  school  commissioners  are  given  exclusive 
power  over  the  school  fund  and  all  money  due  that  fund  is 
.made  payable  to  their  order,  they  may  sue  for  money  due  the 
fund;3  and  it  is  no  objection  that  the  defendant  might  have 
.been  sued  on  his  official  bond  in  the  name  of  the  state,  or  that 
.the  money  due  was  raised  by  an  illegal  tax.8 

§  93.  Funds,  use. — The  Straight  University  is  not  a  public 
institution  of  learning,  and  therefore  the  constitutional  prohibi- 
tion to  appropriation  made  in  its  favor  must  prevail.*  The  Wis. 
.law,  1869,  giving  surplus  drainage-money  to  schools,  means 
"to  be  expended  by  the  school  officers  of  the  district."5  Where 
.public  lands  were  sold  for  Cornell  University,  and  proceeds  in- 
vested in  four-per-cents,  bought  at  a  premium,  the  university 
was  entitled  only  to  net  income.6  County  treasurer  in  Mo.  is 
proper  party  in  injunction  suit  to  prevent  illegal  use  of  school 
'fund.7  Where  the  officials  of  a  district  have  failed  for  years  to 
.account  for  funds  received  to  pay  debts  for  bounties  to  recruits, 
and  there  was  no  money  in  the  treasury,  the  school  board  were 
authorized  to  levy  a  tax  to  pay  matured  obligations.8  The  legis- 
lature may  delegate  the  power  of  taxation  to  the  taxable  inhab- 
itants for  raising  a  fund  for  the  support  of  schools  ;9  and  the 
power  to  authorize  local  taxation  for  erection  of  school  build- 
ings is  not  unconstitutional.10  The  power  of  townships  in  N.  J. 


1  Montgomery  Co.v.  Auchley,  (Mo.)  15  S.  W.626. 
2Pickett  v.  Harrod,  (Ky.)  5  S.  W.  473. 
»  O'Neal  v.  Sch.  Comm'rs,  27  Md.  227. 
4  State  v.  Graham,  25  La.  Ann.  440. 
6  Sch.  Dist.  v.  Edwards,  46  Wis.  150. 
'People  v.  Davenport,  30  Hun  (N.  Y.)  177. 
"  Black  v.  Cornell,  30  Mo.  App.  64. 
-8 St.  Clair  Sch.  Bd's  Appeal,  74  Pa.  St.  252. 


» Burgees  v.  Pne,  2  Gill.  (Md.)  11;  Steward 
v.  Jefferson,  3  Hair.  (Del.)  335. 

10  Newman  v.  Thompson,  4  S.  W.  341;  Bd.  v. 
Harrodsburg  Ed.,  7  S.  W.  312 ;  Fitzpatrick 
v.  Bd.,  7  S.  W.  R.  896;  Sch.  Dist.  v.  Webb, 
12  S.  W.  R.  298;  Bd.  Trs.  v.  Thomas,  15  S. 
W.  670. 


FUNDS,  USE.  HI 


to  raise  money  for  schools  was  restricted  by  act  of  1846  to  an 
amount  not  exceeding  double  that  received  from  the  state.1 
Where  sub-districts  lie  in  two  counties,  the  taxes  for  contingent 
and  teachers'  fund  belong  to  the  district  township  to  which  the 
territory  was  attached,  in  Iowa.8  The  act  of  Ya.,  authorizing 
payment  of  moneys  due  the  literary  fund  to  be  made  in  coupons, 
is  illegal,  and  act  of  1884,  providing  that  all  taxes  for  school 
fund  shall  be  paid  in  lawful  money  of  the  United  States,  is  con- 
stitutional.3 The  excess  over  $50  from  dog  license  under  Ind. 
act  of  1881,  received  by  a  city,  goes  to  the  township  in  which 
the  city  is,  and  the  city  cannot  claim  any  of  it  for  school  pur- 
poses.* The  act  directing  the  purchase  of  "  Collins's  Historical 
Sketches  of  Kentucky  "  is  unconstitutional  in  appropriating  part 
of  the  school  fund  to  that  purpose.5 

§  94.  Funds,  use. — Where  the  territorial  laws  C.  L.,  §§  1840, 
1845,  authorized  the  board  of  education  to  designate  private 
institutions  where  instruction  should  be  given,  and  the  tuition 
paid  by  the  territory,  and  a  contract  was  made  accordingly, 
which  contract  required  three  months'  notice  to  cancel,  it  was 
held  that  the  constitution  of  the  state  subsequently  adopted 
prohibiting  appropriation  to  any  sectarian  institution,  terminated 
the  contract ;  and  such  provision  did  not  contravene  the  U.  S. 
constitution  prohibiting  the  impairing  of  obligations  of  contract.* 
Miss.  Acts  1878,  p.  123,  allowing  pupils  in  private  schools  to 
receive  pro  rata  share  of  the  common-school  fund,  but  not  re- 
quiring freedom  from  sectarian  control,  or  supervision  of  any 
state  or  county  superintendent,  or  that  the  conductors  exclude 
no  pupils,  is  unconstitutional.7 


1  State  v.  Kingsland,  23  N.  J.  (3  Zab.)  85. 

2  Honey  Creek  v.  Ploete,  59  Towa,  109. 
*McGahey  v.  State,  (Va.)  135  U.  S. 

< South  Bend  v.  Jaquith,  90  Ind.  495. 


5  Collins  v.  Henderson,  11  Bush  ( Ky.)  74. 
e Synod  of  Dakota  v.  State,  (S.  D.)  50  N.W. 

632. 
T  Otken  v.  Lankin,  56  Miss.  758. 


112  PUBLIC   SCHOOL   LAW. 

§  95.  Fund,  use. — Under  N.  Y.  Laws  1850,  ch.  261,  orphan 
asylums  incorporated  since  its  passage  are  entitled  to  share  in 
money  raised  by  tax  in  school  districts,  as  well  as  in  that  raised 
by  the  state ;  but  where  a  mandamus  is  asked,  to  compel  the 
trustees  of  a  district  to  pay  to  such  asylum  its  share,  and  no 
money  has  been  raised  by  the  district  for  the  asylum,  and  all 
the  money  has  been  appropriated  to  specific  purposes,  and  the 
asylum  school  has  not  been  taught  by  a  duly  authorized  teacher, 
a  mandamus  ought  not  to  issue.1  The  provision  of  §  8  of  the 
Ind.  law  of  1865,  prohibiting  expenditure  of  certain  school  rev- 
enues in  advance  of  apportionment,  applies  only  to  the  school 
revenue  for  tuition,  which  belongs  to  the  state  and  is  by  it 
apportioned.2  Although  a  district  may  have  voted  a  tax  for 
erecting  a  school-house,  the  fund  is  beyond  the  control  of  its 
officers  until  its  expenditure  is  authorized  by  a  vote  of  the  dis- 
trict.* Under  the  Pa.  law  of  1854,  §33,  school-district  taxes 
for  building  purposes  cannot  be  diverted  to  ordinary  purposes.* 
Under  the  authority  of  the  board  of  school  directors  of  a  par- 
ish, the  treasurer  may  make  valid  sale  of  the  warrants  of  the 
state  which  represent  that  portion  of  the  interest  on  the  free- 
school  fund  due  to  said  parish.6  The  power  given  by  the  Ky. 
constitution  to  the  legislature  to  control  the  school  fund  cannot 
be  diverted  to  the  county  courts.6  By  the  act  "imposing  an 
additional  tax  of  fifteen  cents  for  the  purpose  of  increasing  the 
common-school  fund,"  any  sum  produced  thereby  can  only  be 
applied  in  aid  of  the  common  schools.7  In  111.,  directors  of 
schools  may  levy  a  special  tax  for  school  purposes  without  a 
vote  of  the  people,  but  cannot  use  funds  raised  for  one  object 


*St.  Thomas  Orphan  Asylum  v.  Gowacki,  2 

Thomp.  &C.  (N.  Y.)436. 
2Harney  v.  Woden,  30  Ind.  178. 
a  Sch.  Diet.  v.  Stough,  4  Neb.  357. 
*  German  Tp.  Sch.  Dist.  v.  Langston,  74  Pa. 

St.  454. 


6Concordia  Sch.  Dirs.  v.  Hernandez.  31  La. 

Ann.  158. 

«Aud.  v.  Holland,  14  Bush  (Ky.)  147. 
7  Collins  v.  Henderson,  11  Bush  ( Ky.)  74. 


GRAMMAR  AND  HIGH  SCHOOLS.  113 

for  another.1  The  Ky.  act  of  1872,  appropriating  common- 
school  funds  to  Y.  Academy,  is  unconstitutional.2  Special  leg- 
islation which  does  not  aid  the  general  system,  or  relieve 
against  hardships  of  its  provisions  or  the  defaults  of  officers,  is 
calculated  to  destroy  the  system  of  common  schools,  and  is  un- 
constitutional.2 

§  96.  Funds,  etc. — In  order  to  entitle  the  plaintiff  to  re- 
cover the  penalty  of  20  per  cent,  interest  under  the  act  of  1835, 
it  must  be  claimed  in  the  declaration,  in  a  suit  on  a  note  given 
for  loan  of  school  funds.3  The  Miss,  acts  of  1854,  ch.  345,  and 
of  1856,  ch.  27,  are  directory  in  requiring  deeds  of  trust  on  real 
estate  to  secure  the  repayment  of  the  loans  of  the  common- 
school  fund,  but  they  do  not  make  void  a  note  given  for  such 
loan,  not  secured  by  a  deed  of  trust.*  In  the  absence  of 
specific  appropriation  of  1891,  Conn.,  §  2228,  providing  for 
'annual  division  of  income  of  school  fund,"  amounts  to  an 
ippropriation.6 

§97.  Grammar  and  high  schools. — In  Mass,  it  is  not 
competent  for  a  town  to  establish  a  grammar  school  for  the 
benefit  of  one  part  of  the  town  to  the  exclusion  of  the  other.6 
The  Ky.  act  of  1884,  authorizing  the  establishment  of  graded 
schools  and  application  thereto  of  the  districts  pro  rata,  is  not 
unconstitutional.7  In  Ind.  a  majority  of  the  whole  number  of 
trustees  establishing  a  joint  graded  school  may  transact  all  the 
business.8  The  act  of  March  12,  1858,  Iowa,  for  the  establish- 
ment of  high  schools  in  the  counties,  is  unconstitutional  and 
void.9  In  Wis.,  where  a  joint  high  school  was  divided  and  one 


iPennington  v.  Coe,  57  HI.  118. 
«Halbert  v.  Sparks,  9  Bush  (Ky.)  259. 
•Russell  v.  Hamilton,  3  111.  (2  Scam.)  56; 

Hamilton  v.  Wright,  2  111.  ( 1  Scam.)  582. 
<Gaines  v.  Faris,  39  Mies.  403. 
6  State  v.  Staub,  (Conn.)  23  A.  924. 

—  8 


«  Commonwealth  v.  Dedham,  16  Mass.  141. 
*  Williamstown  G.  P.  S.  v.  Webb,  (Ky.)  12  S. 

8  Hanover  Sch.  Tp.  v.  Gant,  125  Ind.  557. 
"High  Sch.  v.  Clayton,  9  Iowa,  175. 


114 


PUBLIC   SCHOOL   LAW. 


of  the  districts  failed  to  levy  its  portion  of  taxes,  the  remedy  is 
by  mandamus  ;*  and  that  a  course  of  study  adopted  is  different 
from  that  contemplated  by  law,  is  not  a  ground  for  enjoining  a 
legal  tax  for  maintaining  the  school.2  Where  a  high  school  was 
vested  in  township  board,  the  formation  of  that  territory  into 
an  incorporated  village  did  not  transfer  the  property  or  control 
of  the  high  school  to  the  board  of  education  of  the  village.* 
The  111.  Rev.  Stat.,  957,  §  35,  for  the  creation  and  maintenance 
of  high  schools  for  a  township  on  a  vote  of  the  people,  is  not 
unconstitutional.*  A  court  will  not  interfere  with  establish- 
ment of  high  school  when  officers  do  not  exceed  their  powers  ;5 
and  taxes  for  high  school  were  sustained  in  Mich.6 

§  98.  Judgment. — In  1864,  a  school  district  was  indebted 
to  the  petitioners.  In  1866,  it  was  united  with  other  districts, 
and  ceased  to  hold  district  meetings,  in  1870;  the  petitioners 
recovered  judgment  upon  their  claim ;  the  judgment  was  valid, 
and  a  mandamus  would  issue  commanding  vacancies  in  the  dis- 
trict offices  to  be  filled  ;7  but  in  Mich,  it  was  held  after  School 
District  No.  5  of  a  town  had  been  united  to  District  No.  2  and 
a  judgment  was  obtained  against  No.  5,  that  under  1  Com.  Laws, 
§  2335,  the  new  district  was  alone  liable  for  the  debts  of  the 
two  former  districts,  and  the  judgment  was  therefore  void.8  A 
judgment  against  a  school  district  cannot  be  impeached  col- 
laterally ;9  if  judgment  is  rendered  against  a  school  district  hav- 
ing no  corporate  funds,  the  remedy  in  the  absence  of  statute  is 
in  equity.10  If  the  members  of  a  school  district  are  individually 
liable  for  the  debts  thereof,  under  the  school  acts  prior  to  1851, 


1  Joint  High  Sch.  v.  Town  of  Green  Grove,  77 

Wis.  532. 

2  Richards  v.  Raymond,  92  m.  612. 
sBd.  Ed.  v.  Bd.  Ed.,  41  Ohio  St.  680. 
4  Richards  v.  Raymond,  92  111.  612. 

6  Wiley  v.  Sch.  Comm'r,  51  Md.  401. 


«  Stuart  v.  Dist.,  30  Mich.  69. 

7  Clark  v.  Nichols,  52  N.  H.  298. 

8  Brewer  v.  Palmer,  13  Mich.  104. 
»McLoud  v.  Selby,  10  Conn.  190. 

"Kenyon  v.  Clarke,  2  R.  I.  67. 


JUDGMENT.  H5 


R.  L,  their  goods  and  chattels,  or  bodies,  if  to  be  found,  must  be 
levied  upon  before  resorting  to  their  real  estate.1  Under  act 
of  1836,  where  there  is  a  judgment  against  school  district  and 
it  becomes  dormant,  it  will  have  to  be  revived  before  execution 
can  issue.2  An  order  that  a  judgment  for  services  as  a  teacher 
shall,  after  a  return  of  no  property  found,  be  paid  out  of  school 
funds  of  the  delinquent  township  in  the  county  treasury,  does 
not  improperly  divert  those  funds ;  and  "  teachers  of  common 
schools,"  means  in  the  free  common  schools  of  the  state  estab- 
lished by  law.3  The  trustees  of  a  district  are  not  a  corporation, 
so  as  to  be  liable  to  an  action  subjecting  school  property  to 
execution.*  In  Mass,  an  execution  against  the  inhabitants  of  a 
school  district  may  be  levied  on  the  property  of  an  individual 
member  of  the  district ;  and  may  be  so  levied  in  the  first  in- 
stance, even  if  there  is  corporate  property  of  the  district,  which 
can  be  taken  and  applied  towards  satisfaction  of  such  execu- 
tion.5 One  who  has  a  judgment  against  a  district  township 
upon  an  order  on  the  school-house  fund,  and  to  whom  the  di- 
rectors have  issued  an  order  upon  the  treasurer  for  payment,  in 
compliance  with  the  Iowa  Code,  §  1787,  is  not  entitled  to  pay- 
ment out  of  the  general  fund  to  the  exclusion  of  the  holders  of 
other  orders  on  the  school-house  fund  who  have  not  obtained 
judgments.  He  may  levy  upon  the  property  of  the  district,  if 
any,  to  compel  by  mandamus  the  levy  of  a  special  tax,  if  the  dis- 
trict has  not  levied  the  limit.6  In  111.  a  district  treasurer  can- 
not be  compelled  by  mandamus  to  pay  a  judgment  against  the 
district,  when  there  has  been  no  order  of  directors  or  court  for 
the  payment  of  same.7 

i  Kenyon  v.  Clarke,  2  R.  I.  67. 

2Sch.  Diet.  v.  O'Donnell,  (Pa.)  19  A.  358. 

aTrs.  v.  Simpson,  11  Ind.  520. 

*  Allen  v.  Trs.  of  Sen.  Disk,  23  Mo.  418. 


.  Dudley,  6  Mete.  (Mass.)  546. 
6  Chase  v.  Morrison,  40  Iowa,  620. 
i  Watts  v.  McLean,  28  111.  App.  537. 


116 


PUBLIC   SCHOOL   LAW. 


§  99.  Legislature,  powers. — The  rights  of  inhabitants  of 
school  districts,  which  depend  upon  the  corporate  existence  of 
the  district,  are  liable  to  be  taken  away  by  the  legislature.1 
And  the  legislature  has  the  general  supervisory  power  over  the 
public-school  system,  and  may  from  time  to  time  alter  or  change 
it  by  general  laws  not  conflicting  with  the  constitution  of  the 
state. 

§  100.  Mandamus. — Mandamus  to  compel  payment  of  debt 
can  only  be  compelled  after  it  has  been  reduced  to  judgment  ;* 
but  this  is  an  appropriate  remedy  to  compel  the  county  com- 
missioners to  pay  over  the  amount  of  taxes  levied  for  school 
purposes.8  Mandamus  will  not  lie  against  the  treasurer  of  the 
old  district  to  compel  payment  of  funds  to  the  new  of  such 
funds  beyond  his  control  ;*  and  where  district  was  divided  into 
three  townships,  and  one  was  to  pay  debts  of  original,  the  holder 
of  an  order  could  not  compel  the  two  to  contribute.5  The  treas- 
urer of  the  board  of  school  inspectors  is  the  proper  custodian  of 
the  township  library  money ;  and  the  town  treasurer  is  bound 
to  pay  it  over ;  and  mandamus  will  lie  to  enforce  this  duty.6 

§  101.  Mechanics'  lien. — In  111.  a  general  execution  can- 
not issue  against  school  directors.7  The  property  of  a  school 
district  is  exempt  from  levy,  and  it  is  probable  that  no  me- 
chanics' lien  can  be  maintained  against  it  ;8  but  in  Conn,  the 
private  property  of  the  inhabitants  may  be  taken  to  satisfy  a 
judgment  against  such  district.9  The  "Board  of  Education  of 
the  State  of  Illinois "  is  a  corporation,  and  its  property  is  sub- 
ject to  a  mechanics'  lien;10  and  a  lien  was  allowed  against 


iparnnm's  Petition,  51  N.  H.  376;  Connor  v. 

St.  A.  Bd.,  10  Minn.  352. 
»Sch.  Dist.  v.  Bodenhamer,  43  Ark.  140. 
»Bd.  Co.  Sen.  Comm'rs  T.  Gantt,  (Md.)  21  A. 

54& 

*  People  v.  Hodge,  4  Neb.  265. 
« People  v.  Bd.,  41  Mich.  547. 
«McPharlin  v.  Mahoney,  30  Mich.  100. 


7  Watson  v.  Abry,  9  HI.  App.  280. 

8  Leonard  v.  City  Brooklyn,  71  N.  T.  498; 

Loring  v.  Small,  50  Iowa,  261 ;  Charnack 
v.  Dist.  Tp.  Colfax,  51  Iowa,  70;  Bd.  Ed.  v. 
Maidenbnrger,  78  111.  58:  Quhm  v.  Allen, 
8b  111.  39;  Fluty  v.  Sch.  Dist.,  29  Ark.  97. 

•McLond  v.  Selby,  10  Conn.  390. 

10  Bd.  Ed.  v.  Greenebaum,  39  111.  609. 


MEETING,  ETC. 


117 


school-house  in  Kas.  ;*  but  in  Brinkerhoff  v.  Bd.  Ed.,  37  How. 
Pr.  520,  a  mechanics'  lien  was  refused  and  could  not  be  enforced 
against  a  school-house,  and  so  held  in  many  cases  ;2  and  ordi- 
narily will  not  lie  against  school-house  in  absence  of  statute 
authorizing  same.3  Whether  execution  can  issue  against 
school-house  on  mechanics'  lien,  is  not  decided.4 

§  102.  Meeting,  etc. — Where  time  of  annual  meeting  is 
fixed  it  cannot  be  adjourned  ;5  but  an  annual  meeting  may  ad- 
journ to  next  day  in  order  to  complete  its  business,  and  may 
appropriate  money  to  pay  for  building  a  school-house.6  It  is 
not  necessary  that  the  meetings  of  a  school  district  in  Ky.,  to 
adopt  the  school  system,  should  be  fixed  by  the  county  court.7 
In  order  for  the  selectmen  in  Me.  to  call  a  meeting  under  R.  S., 
ch.  11,  a  vacancy  in  office  of  agent  of  the  district  or  refusal  to 
act,  must  be  shown,  and  a  return  on  the  notice  may  be  amended.8 
A  meeting  called  to  see  if  the  district  will  vote  not  to  defend  a 
suit  for  labor  and  materials  in  building  a  school-house,  is  not  a 
meeting  ufor  raising  money  for  building  or  repairing  a  school- 
house,"  under  Pamp.  Laws,  ch.  222,  §  2.9  Plaintiff  offered  evi- 
dence to  show  that  at  a  subsequent  meeting  of  the  district  prior 
authority  was  revoked.  It  was  competent  for  the  counsel  claim- 
ing to  have  the  authority  to  show  that  the  vote  of  revocation 
was  passed  by  illegal  votes.9  Where  a  meeting  voted  that  the 
school-house  should  be  sold  at  auction,  and  a  new  one  built  on 
the  same  site,  the  contract  therefor  to  be  given  to  the  lowest 
bidder,  it  was  a  legal  vote,  and  authorized  the  trustees  to  raise 
by  tax  the  amount  to  be  paid  the  contractor,  deducting  the  pro- 


i  Wilson  v.  Sch.  Dist.,  17  Kas.  104. 

a  Phillips'  Mech.  Lien,  255,  BIO,  611,  60  Mo.  23; 
State  v.  Tiedeman,  69  Mo.  306;  Wilson  v. 
Cummins,  7  Watts,  197;  Williams  v.  Con- 
troller, 18  Pa.  St.  275;  Foster  v.  Fowler.  60 
Pa.  St.  27:  Poillon  v.  Mayor,  47  N.  Y.  606; 
Shattel  v.  Woodward,  17  Ind.  225:  Char- 
nock  v.  Dist.  Tp.,  51  Iowa,  70;  Mayerhofer 
v.  Bd.  Ed.,  89  Cal.  110. 


8Hovey  v.  Town,  (R.  I.)  20  A.  205. 
4  Wilson  v.  Sch.  Dist.,  17  Kas.  104 

6  State  v.  Cones,  15  Neb.  444. 
6Maher  v.  State,  (Neb.)  49  N.  W.  438. 

7  Chiles  v.  Todd,  4  B.  Mon.  (  Ky.)  126 
8Siarbird  v.  Sch.  Dist..  51  Me.  HR. 

9  Davis  v.  Sch.  Dist.,  43  N.H.  381. 


118  PUBLIC  SCHOOL  LAW. 

ceeds  of  the  old  house.1  A  school  district  in  its  annual  meeting 
may  pay  equitable  claims.8  Under  the  Minn.  Comp.  Stat.,  it  i& 
not  necessary  that  the  time  for  next  annual  meeting  be  des- 
ignated at  the  preceding  annual  meeting  ;3  and  the  directions  to 
contract  for  erection  or  lease  of  a  school-house  must  come  from 
a  district  meeting  in  Minn.*  In  Minn,  the  powers  of  a  special 
meeting  are  the  same  as  those  of  annual  meeting  ;6  and  ratifica- 
tion of  act  of  trustees  by  district  meeting  renders  the  district 
liable,  and  this  cannot  be  rescinded.  In  Yt,  when  collector  of 
taxes  for  a  school  district  was  elected  at  annual  meeting  held  at 
a  time  other  than  last  Tuesday  in  March,  he  cannot  justify  un- 
der a  tax  warrant.6  Where  a  district  had  adopted  the  Somers- 
worth  act,  and  had  not  chosen  a  committee,  it  was  the  duty  of 
the  selectmen  to  appoint  a  committee,  and  in  case  of  their  re- 
fusal to  do  so,  a  peremptory  mandamus  should  issue.7  The 
N.  Y.  laws  authorizing  building  of  school-house  and  issue  of 
bonds,  whenever  the  majority  of  all  the  inhabitants,  etc.,  means 
the  majority  of  those  voting.8 

§  103.  Meeting,  notice. — Where  notice  of  annual  district 
meeting  is  given  by  two  of  the  district  directors  it  will  be  held 
sufficient,  in  Ark.9  The  record  in  a  matter  where  there  had 
been  no  notice  in  the  warning,  is  of  value  only  as  to  those 
matters  upon  which  the  district  might  lawfully  act  ;10  and  under 
a  call  for  district  meeting  to  obtain  information  on  assessment, 
a  committee  cannot  be  authorized  to  employ  counsel  to  litigate 
at  expense  of  district.11  Where  the  warning  stated  that  the  ob 
ject  was  to  be  "to  take  into  consideration  the  expediency  o> 


i  Ackennan  v.  Vail,  4  Den.  (N.  T.)  297. 
»  Stockdale  v.Wayland  Sch.  Diet.,  47  Mich.  226. 
•Sanborn  v.  Sch.  Diet.,  12  Minn.  17. 
*  Bobbins  v.  Sch.  Dist.,  10  Minn.  268. 
*Sanborn  v.  Sch.  Dist.,  12  Minn.  17. 
•Willard  v.  Pike,  ( Vt.)  9  A.  907. 


*Bntler  v.  Selectmen,  19  N.  H.  553. 

•Smith  v.  Proctor,  53  Hun  (N.  Y.)  143. 

•Holland  v.  Davies,  36  Ark.  446. 
10 Wilson  v.  Watersville  Sch.  Dist.,  44  Com 

157. 
"Wright  y.  North  Sch.  Dist.,  53  Conn.  576 


MEETING,  NOTICE.  H9 


raising  money  for  the  use  of  schooling  for  the  year  ensuing," 
held,  it  was  sufficient  to  authorize  the  laying  of  a  tax  for  that 
purpose.1  Where,  in  1839,  a  meeting  was  warned  by  posting 
a  notice  on  two  public  sign-posts  only,  held,  that  by  the  act  of 
1823  (tit.  88,  ch.  2,  §2),  Conn.,  under  which  this  meeting  was 
warned,  the  notification  was  sufficient,  notwithstanding  a  vote 
of  the  society  1822,  that  the  notice  should  be  on  all  the  public 
sign -posts.1  All  that  is  requisite  in  the  form  of  notice  of  a 
meeting  for  a  special  purpose,  is,  that  it  should  be  so  that  the 
inhabitants  may  understand  the  purpose.2  Where  the  notice 
stated  the  purpose  of  the  meeting,  to  decide  whether  the  in- 
habitants would  direct  a  suit  to  be  commenced  for  the  damage 
then  lately  done  to  the  school-house  and  its  furniture,  and  ap- 
point agents  to  conduct  a  suit  if  necessary ;  it  was  sufficient, 
although  it  did  not  specify  the  nature  or  amount  of  the  dam- 
age, or  when  or  by  whom  it  was  done  ;2  and  where  a  notice  of 
an  election  specifies  several  purposes  in  such  a  way  as  that  no 
doubt  is  left  as  to  its  meaning,  it  will  be  sufficient.3  Where  the 
law  does  not  prescribe  what  notice  shall  be  given,  reasonable 
notice  only  is  required,  and  such  notice  will  be  presumed  if  the 
board  meets  and  all  members  are  present.4  No  notice  is  re- 
quired for  a  regular  meeting.6  A  meeting  called  to  consider 
whether  it  would  re-establish  the  school  -  district  system  and 
choose  the  officers  required  in  such  an  event,  and  a  vote  taken 
at  that  meeting  to  so  re-establish,  is  sufficient,  under  the  Mass, 
act  of  1870  (ch.  196),  where  the  district  was  abolished  by  the 
act  1869  (ch.  HO).6  At  a  meeting  called  "to  choose  a  district 
committee  and  to  act  on  other  business  that  may  be  thought 


i  Bartlett  v.  Kinsley,  15  Conn.  327. 
*Sch.  Dist.  v.  Blakeslee,  13  Conn.  227. 
'Merrit  v.  Farris,  22  111.  303. 
4  People  v.  Frost,  32  111.  App.  243. 


«  Aikman  v.  Sch.  Dist.,  27  Kas.  129;  Hazen  v. 
Lerche,  47  Mich.  626;  Sch.  Dist.  v.  Jen- 
nings, 10  111.  App.  643;  Bal!ard  v.  Davis, 
31  Miss.  533;  Downing  v.  Ruger,  21  ^>nd. 
178;  Sch.  Dist.  v.  Bennett,  52  Ark.  511. 

•Perkins  v.  Crocker,  109  Mass.  128. 


120  PUBLIC   SCHOOL   LAW. 

necessary,"  it  was  voted  that  future  meetings  should  be  warned 
by  the  clerk  of  the  district ;  and  at  a  future  meeting  so  warned 
a  sum  was  voted,  which  was  afterwards  assessed ;  the  vote  at 
the  first  meeting  was  invalid,  there  being  no  article  in  the  war- 
rant concerning  the  calling  of  future  meetings,  and  the  assess- 
ment  was  illegal.1  A  return  on  a  warning  that  uhe  had 
warned  all  the  legal  voters"  in  the  district  uto  meet  at  the 
time  and  place,  and  for  the  purposes  within  mentioned,"  was 
defective  in  not  specifying  how  or  when  notice  was  given.8 

§  104:.  Meeting,  notice. — Where  the  warrant  for  calling 
the  meeting  shows  the  purpose  of  acting  on  the  articles  named 
in  the  application  for  calling  the  same,  the  articles  are  as  much 
a  part  of  the  warrant  as  if  embodied  in  the  same.3  Where  the 
warrant  for  a  town  meeting  was,  "To  act  on  anything  in 
relation  to  the  limits  of  school  districts,  that  the  town  may  see 
cause,"  and  a  petition  from  the  inhabitants  of  the  four  school 
districts  was  presented  and  referred  to  the  selectmen,  who  made 
a  report,  at  an  adjourned  meeting,  recommending  that  said  four 
districts  be  made  into  three  only,  and  their  report  was  recom- 
mitted to  them,  uto  divide  said  districts,"  the  warrant  fora 
subsequent  meeting  included,  "To  hear  all  reports  of  com- 
mittees and  act  thereon,"  "To  act  on  anything  in  relation  to 
the  limits  of  school  districts,  or  relating  to  individuals  or  parts 
of  districts,  who  may  wish  to  be  set  off  from  one  district  to 
another,"  these  were  sufficient  to  authorize  the  last  meeting  to 
accept  the  report  of  the  selectmen  making  three  districts  out  of 
said  four,  and  to  establish  them.*  Where  the  clerk  issued  a 
warrant  not  under  seal  for  annual  meeting  at  time  and  in 
manner  required  by  the  by-law,  as  per  order  of  the  prudential 

i Little  v.  Merrill,  10  Pick.  (Mass.)  543.  I    »Oeorge  v.  Mendon,  6  Mete.  (Mas?  )  497 

*  Perry  v.  Dover,  12  Pick.  ( Mass.)  206.  |    *Alden  v.  Rounseville,  7  Mete.  ( Mass.)  218. 


MEETING,  NOTICE. 


121 


committee,  and  returned  on  warrant  in  pursuance  of  the  above 
warrant,  "  I  have  warned  the  legal  voters  of  the  district "  "  as 
prescribed  by  the  by-laws,  to  attend  and  act  upon  the  business 
therein  named,"  the  warrant  and  warning  were  valid.1  A  clerk, 
directed  by  vote  as  to  how  he  should  give  notice  for  future 
meetings,  has  no  power  to  call  a  meeting  except  when  directed 
by  proper  authority;8  and  where  a  clerk  was  empowered  to  warn 
annual  meeting  he  was  not  authorized  to  call  other  meetings  ;8 
and  the  manner  prescribed  by  district  for  warning  future  meet- 
ings must  be  pursued  ;4  and  a  district  meeting  cannot  act 
•excepting  upon  articles  stated  in  the  warrant.5 

§  105.  Meeting,  notice. — A  vote  to  raise  money  at  a  meet- 
ing not  properly  called  is  illegal.6  A  meeting  of  a  district 
called  by  the  school  agent,  without  the  written  application  of 
^hree  or  more  legal  voters,  is  not  in  conformity  with  the  statute.7 
The  act  1850,  ch.  193,  Me.,  provides  two  modes  in  which  meet- 
Ings  of  school  districts  may  be  legally  called.  Since  1856,  no 
opportunity  for  conflicting  meetings  has  existed.7  It  is  not 
accessary  to  the  validity  of  a  warrant  from  the  selectmen,  that 
the  application  should  be  recorded,  or  produced,  or  recited  in 
the  warrant.8 

§  106.  Meeting,  notice. — Where  there  was  no  school-house 
in  the  district,  a  return  upon  the  warrant  that  he  had  notified, 
etc.,  "by  posting  up  four  copies  of  this  warrant,  one  on  the 
sign-post  at  the  confluence  of  the  A  and  B  roads,  one  on  the 
corner  of  the  blacksmith  shop,  one  on  the  Methodist  meeting- 
house, and  one  in  the  postoffice,  all  of  which  places  are  in  said 
•district,"  was  sufficient,  under  ch.  17,  §  24,  Me.8  A  district 


i  Kingsbury  v.  Sch.  Disk,  12  Mete.  (Mass.)  99. 
2 Stone  v.  Sch.  Dist.,  8  Gush.  (Mass.)  592. 
;»Sch.  Dist.  v.  Atherton,  12  Mete.  (Mass.)  105. 
•*  Hay  ward  v.  Thirteenth  Sch.  Dist.,  2  Cush. 
(Mass.)  419. 


SHolbrook  v.  Faulkner,  55  N.  H.  311. 
'Hideout  v.  Sch.  Dist.,  1  Allen  (Mass.)  232. 
i  Sch.  Dist.  No.  5  Y.  Lord,  44  Me.  374. 
8Soper  v.  Sch.  Dist  No.  9,  28  Me.  193. 


122 


PUBLIC  SCHOOL  LAW. 


meeting  may  be  called  by  the  selectmen  of  the  town,  in  Me.,  on 
the  written  application  of  three  voters  residing  in  the  district, 
although  not  described  as  such  in  the  application  ;J  notice  of  dis- 
trict meetings  is  sufficient,  if  posted  on  the  16th  of  the  month, 
the  meeting  to  be  held  on  the  24th.1  Under  act  1834,  Me., 
where  notices  were  posted  "one  at  the  school-house  and  one  at 
the  grist-mill,  both  in  said  district,"  this  was  a  compliance  with 
the  statute.1  Where  a  town  has  directed  the  mode  of  calling 
the  meetings  of  school  districts,  it  is  necessary  to  show  that  such 
directions  have  been  pursued.2  A  notice  "for  the  purpose  of 
hearing  the  inhabitants  of  said  district  on  the  subject  of  their 
disagreement,  respecting  a  suitable  place  to  be  selected  for  the 
erection  of  a  school-house  in  said  district,  and  of  deciding  where 
such  school-house  shall  be  located,  and  lay  out  the  same,"  is  in- 
sufficient where  application  had  been  made  to  determine  dam- 
ages caused  by  appropriation  of  lot,  under  Me.  R.  S.,  ch.  11, 
§57.8  Under  Mich,  law  of  1867,  §16,  (requiring  ten  days' 
notice  of  the  meetings  of  boards  of  school  inspectors,)  no  busi- 
ness not  specified  in  the  notice  can  be  transacted.*  Under  ch.  36, 
§  38,  Gen.  St.  Minn.,  where  the  notice  failed  to  recite  on  its 
face  that  the  signers  were  freeholders,  it  is  not  void  for  the 
want  of  such  recital.5  A  resolution  for  the  call  of  a  meeting  of 
the  legal  voters  of  the  district  of  S.  A.  for  the  purpose  of  de- 
termining upon  the  erection  of  a  school-house  or  school-houses, 
and  the  purchase  of  a  site  or  sites  therefor,  and  the  amount  of 
money  to  be  raised  for  that  purpose,  etc.,  was  sufficiently  spe- 
cific under  the  act  of  1860,  Minn.6  It  may  not  be  necessary 
that  all  three  of  the  school  officers  must  unite  in  a  contract,  to 


i  Fletcher  v.  Lincolnville,  20  Me.  439. 
»Moor  v.  Newfield,  4  Me.  (4  Greeul.)  44. 
•Leavitt  v.  Eastman,  77  Me.  117. 


*  Passage  v.  Sch.  Insp.,  19  Mich.  330;  Andres* 

v.  Same,  id.  333. 

6  Sturm  v.  Sch.  Diet.,  45  Minn.  88. 
«  State  v.  St.  Anthony,  10  Minn.  433. 


MEETING,  NOTICE. 


123 


make  it  binding  upon  the  district,  yet  all  of  them  should  be 
duly  notified,  and  afforded  an  opportunity  to  be  present  at  all 
meetings  at  which  any  business  is  transacted  for  the  district,1 
and  official  certificate  of  posting  notice  of  election  by  director 
was  held  to  be  proof  of  due  notice  ;8  so  an  appearance  before 
the  selectmen  and  committee  acting  on  a  change  in  district  may 
waive  notice.3 

§  107.  Meeting,  notice. — Where  the  prudential  committee 
on  application  of  voters  refuse  to  call  a  meeting,  but  within  ten 
days  afterwards  call  a  meeting  for  the  same  purpose,  but  for  a. 
more  distant  day,  this  is  such  a  refusal  to  call  a  meeting  as, 
under  Kev.  Stat.,  ch.  TO,  N.  H.,  will  authorize  the  selectmen  to 
call  it ;  and  the  selectmen's  warrant,  dated  before  the  lapse  of 
ten  days,  but  posted  after,  is  valid.*  In  N.  H.  a  notice  of  seven 
days  is  required  for  annual  school-district  meeting;5  where 
there  is  a  prudential  committee  duly  appointed  and  qualified, 
the  selectmen  have  no  authority  to  warn  a  district  meeting;6 
and  an  article  in  the  warrant  for  a  district  meeting,  to  be  held 
before  the  law  of  July  9,  1855,  to  "raise  money"  to  build  a 
school-house,  will  not  authorize  a  vote  to  borrow  money  for 
that  purpose,  though  passed  at  an  adjourned  meeting  held  after 
said  law  took  effect  ;7  and  where  proper  officers  neglect  to  call 
meeting  for  election  of  officers,  in  N.  H.,  a  justice  may  do  so, 
and  the  warrant  need  not  recite  their  failure.8  Where  money 
is  voted  to  be  raised  by  taxation,  at  a  special  meeting,  the  pre- 
vious action  of  the  trustees  in  calling  the  meeting  under  act 
1867,  §  39,  subdiv.  11,  N.  J.,  should  appear  in  the  certificate  of 


i  People  v.  Peters,  4  Neb.  254. 
2 State  v.  Sch.  Dist.,  (Neb.)  33  N.  W.  266. 
*  Andover  v.  Carr,  55  N.  H.  452. 
*Dennison  v.  Sch.  Dist.,  17  N.  H.  492. 


.  Sch.  Dist.,  30  N.  H.  ( 10  Fost.)  25; 
Harris  v.  Sch.  Dist.,  8  id.  8. 
•Giles  v.  Sch.  Dist.,  31  N.  H.  (11  Fost.)  304. 

7  Weare  v.  Sawyer,  44  N.  H.  198. 

8  Pickering  v.  De  Rochemont,  ( N.H.)  23  A.  88. 


124  PUBLIC   SCHOOL   LAW. 

the  clerk  to  the  assessor  ;*  and  special  meetings  of  the  voters 
must  be  called  by  the  board  of  trustees  regularly  convened.2 
The  notices  should  set  forth  the  objects  of  the  meeting;  the 
resolutions  adopted  at  the  meeting  should  conform  to  the  no- 
tice, and  should  show  the  objects  for  which  the  tax  is  voted  ; 
and  the  certificate  of  the  trustees  to  the  assessor  should  show 
all  the  prerequisites  of  taxation  have  been  complied  with.3  A 
defective  precept  for  meeting  to  elect  officers  cannot  be  taken 
advantage  of  to  charge  such  officers  as  trespassers  for  official 
acts  ;*  and  in  N.  Y.  it  was  held  that  the  annual  meeting  is  valid 
without  notice  if  the  time  and  place  are  fixed  at  the  next  pre- 
ceding annual  meeting,  and  the  clerk  acts  in  good  faith  ;5  and 
notice  of  special  meeting  to  appropriate  money  to  build  a 
school-house  gives  power  to  consider  the  plans  for  the  same, 
but  not  unless  notice  of  purpose  to  build  is  given.6  In  Pa.  an 
order  to  commissioners  to  view  for  an  independent  school  dis- 
trict must  direct  ten  days'  special  notice  to  be  given  to  the 
directors  of  the  district  from  which  the  new  one  is  to  be  taken ; 
putting  up  handbills  is  not  such  notice.7  Condemnation  pro- 
ceedings were  not  illegal  because  the  record  did  not  show  how 
the  notices  were  posted,  nor  at  what  hour  held,  but  did  recite, 
'"duly  notified,"  and  the  notice  showed  the  hour.8 

§  108.  Meeting,  notice. — A  notice  of  special  meeting, 
stating  object  to  be  "to  take  action  in  regard  to  the  collection 
of  the  tax  already  assessed,"  will  authorize  the  election  of  a 
-collector  ;9  posting  one  on  school-house,  another  on  building  for- 
merly used  as  a  grain  building,  and  the  third  against  wall  facing 
the  road,  held  to  be  posting  in  public  places  ;9  a  notice  by 


"i  State  v.  Hurff,  38  N.  J.  L.  310. 
•<  State  v.  Sch.  Tre.,  43  N.  J.  L.  358. 

s  State  v.  Browning,  28  N.  J.  L.  (4 Dutch.)  556. 

*  Ring  v.  Grout,  7  Wend.  (N.  Y.)  341. 
••BMarchant  v.  Langworthy,  6  Hill  (N.  Y.)  646. 


« People  v.  Bd.  Ed.,  (N.  Y.)  1  N.  Y.  S.  593 
^Clearfield  Ind.  Sch.  Diet.,  79  Pa.  St.  419. 
8  Rowland  v.  Sch.  Diet.,  (R.  I.)  8  A.  337. 
<>Seabury  v.  Holland,  (R.  L)  8  A.  341. 


MEETING,  NOTICE.  125 


trustee  for  district  meeting,  in  R.  L,  six  days  before  the  meeting, 
stating  time,  place  and  purpose  is  sufficient;1  and  notice  of 
annual  meeting  in  R.  L,  stating  one  of  the  objects  to  be  "to 
decide  what  amount  of  money  shall  be  raised  by  tax,"  is  not 
invalid  for  not  stating  the  use  to  which  the  money  is  to  be 
applied  ;2  but  the  notice  of  a  special  meeting,  stating  the  "laying 
of  a  tax  to  meet  the  expenses  of  repairs,"  will  not  warrant  rais- 
ing, in  addition,  premium  paid  for  insurance  ;8  it  was  held  that 
it  is  necessary  that  the  warrant  for  a  meeting  of  school  district 
should  be  recorded  by  the  district  clerk;*  and  if  it  does  not 
appear  from  the  record  of  the  warning,  that  the  hour  was  speci- 
fied in  the  warning,  it  cannot  be  supplied  by  parol  evidence 
that  it  was,  nor  that  all  the  legal  voters  in  the  district  were 
present  at  such  meeting,  and  voted  upon  the  question  of  raising 
the  tax  ;*  but  it  has  since  been  held  the  Yt.  statute  does  not 
require  a  warning  of  a  school-district  meeting  to  be  dated,  and 
if  the  record  shows  no  date,  the  date  may  be  shown  by  parol; 
and  it  may  be  shown  by  parol  when  the  warrant  was  posted 
up;5  if  a  meeting  of  a  district  is  duly  warned  by  the  clerk, 
without  any  application  to  him  in  writing  for  that  purpose,  and 
is  held  pursuant  to  the  warning,  it  is  legal  and  valid,  but  if  such 
application  in  writing  should  have  been  made,  the  court  would 
presume  that  it  was  made  ;6  where  a  statute  requires  seven  days' 
notice,  a  notice  dated  on  the  1st  day  of  the  month,  for  a  meet- 
ing to  be  held  on  the  7th,  is  insufficient,  and  the  warrant  for  such 
meeting  must  also  specify  the  business  to  be  done;7  and  in 
computing  time  for  notice,  either  the  day  on  which  the  notice 
was  posted,  or  the  day  on  which  the  meeting  was  held,  will  be 


iHowland  v.  Sch.  Diet.,  15  K.  I.  184. 
aSeatrary  v.  Holland,  (R.  I.)  8  A.  341. 
•Holt's  Appeal,  5  R.  I.  603. 
<Sherwin  v.  Bugbee,  17  Vt.  337. 


6Bealey  v.  Dickeneon,  48  Vt.  599. 
e Mason  v.  Sch.  Dist.,  20  Vt.  487. 
7  Hunt  v.  Sch.  Diet.,  14  Vt.  300. 


126  PUBLIC   SCHOOL   LAW. 

counted;1  where  one  article  in  the  warning  for  a  town  meeting 
was,  "To  see  if  the  town  will  make  alterations  in  school  districts 
when  met,"  this  was  sufficient  to  warrant  a  vote  taking  a  certain 
farm  from  one  district  and  placing  it  in  another  ;2  a  warning 
••"  To  see  if  the  town  will  vote  to  divide  School  District  No.  9, 
in  said  town, "was  sufficient  to  make  a  division  of  that  district.3 
§  109.  Meeting,  notice. — It  was  decided  in  Sturm  v.  School 
District,  45  Minn.  88  ( Vanderburgh,  J.)  :  "A  notice  of  a  school 
meeting,  over  the  signatures  of  five  or  more  freeholders,  quali- 
fied electors  of  the  district,  issued  in  a  proper  case  under  Gen. 
>St.  1878,  ch.  36,  §38,  but  which  notice  failed  to  recite  on  its 
face  the  fact  that  the  signers  were  such  freeholders,  is  not  void 
for  the  want  of  such  recital. — The  first  error  assigned  is  that 
the  notice  calling  the  special  school  meeting,  at  which  it  was 
voted  to  remove  the  school-house  in  the  school  district  men- 
tioned in  the  pleadings,  was  defective  in  not  stating  'who  and 
what  the  signers  are.'  The  point  intended  to  be  made  is,  that 
it  does  not  appear  upon  the  face  of  the  notice  that  the  signers 
are  freeholders  or  householders,  and  qualified  electors  in  the 
district.  The  answer  which  the  court  allowed  to  be  interposed 
on  opening  the  judgment  herein  shows  that  the  persons  named, 
or  more  than  five  of  them,  were  in  fact  qualified  electors  and 
freeholders  in  the  district,  as  the  statute  requires,  (Gen.  St.  1878, 
ch.  36,  §  38,)  and  that  the  notices  were  duly  posted  as  required 
by  law,  after  the  refusal  of  the  district  clerk  to  give  notice  of 
the  meeting  in  pursuance  of  a  petition  or  request  so  to  do, 
signed  by  the  requisite  number  of  freeholders,  and  which  peti- 
tion recited  that  the  signers  were  qualified  electors,  freeholders 
and  householders  in  the  district.  The  statute  does  not  require 

i Mason  v.  Sch.  Dist.,  20  Vt.  487.  I   'Weeks  v.  Batchelder,  41  Vt.  317. 

.  Chase,  37  Vt.  196. 


NOKMAL,  ETC. 


127 


that  the  notice  shall  recite  the  legal  qualifications  of  the  persons 
signing  it,  although  it  is  the  usual  and  proper  practice.  But 
where  the  proceedings  are  attacked  for  want  of  jurisdiction,  it 
is  sufficient  that  the  persons  signing  are  so  qualified ;  and  this 
is  a  fact  which  may  be  easily  ascertained  by  the  officers  of  the 
district,  or  other  persons  interested,  before  or  at  the  meeting, 
and  before  the  subjects  embraced  in  the  notice  are  acted  on. 
It  is  the  fact,  and  not  the  recital,  which  gives  the  notice  legal 
validity  in  this  respect.  (Willis  v.  Sproule,  13  Kas.  257;  Austin 
*».  Allen,  6  Wis.  134 ;  Washington  Ice  Co.  v.  Lay,  103  Ind.  48.)  " 

§110.  Meeting,  etc.— Act  111.  1889,  p.  296,  art.  5,  §19, 
providing  that  no  official  business  shall  be  transacted  by  school 
directors,  except  at  a  regular  or  special  meeting,  does  not  invali- 
date official  actions  at  a  meeting  at  which  all  the  directors  are 
present,  though  such  meeting  is  neither  regular  nor  specially 
called  ;*  the  !N".  H.  statute  does  not  require  the  moderator  of  a 
district  meeting  to  be  elected  by  ballot,  or  to  be  sworn  ;8  pro- 
ceedings for  raising  a  sum  by  special  tax  were  held  void  for 
want  of  specification  in  the  vote  of  the  purpose  for  which  the 
money  was  raised,  and  for  want  of  power  in  the  clerk  to  appor- 
tion the  sum  to  be  raised  ;s  electors  of  independent  districts  in 
Iowa  are  given  same  powers  of  obtaining  highways  necessary 
for  school,  and  voting  tax,  as  at  annual  meeting  of  district 
township.  (Acts  9th,  G.  A.)* 

§  111.  Normal,  etc. — The  Mo.  Constitution  having  vested 
all  legislative  power,  not  prohibited  by  the  federal  constitu- 
tion, in  the  general  assembly,  the  establishing  of  normal 
schools,  it  is  fair  to  presume,  was  intended  to  be  left  with 
the  legislature.  Normal  schools  are  public  schools.5  The  es- 


i Lawrence  v.  Trainer,  (111.)  27  N.  E.  197. 
2 Mitchell  v.  Brown,  18  N.  H.  315. 
«  State  v.  Greenleaf,  34  N.  J.  L.  441. 


*McShane  v.  Bd.  Sch.  Dirs.,  76  Iowa,  333. 
6Briggs  v.  Johnson  Co.,  4  Dill.  148. 


128 


PUBLIC   SCHOOL  LAW. 


tablishment  of  Ya.  normal  school  for  females,  is  authorized,  but 
the  appropriation  and  handling  of  the  funds  provided  for  to 
be  paid  out  of  the  public  free  school  is  unconstitutional.1  In 
Kas.  the  principal  and  interest  from  sales  of  state  normal 
school  land  is  to  be  paid  into  the  state  treasury ;  the  interest 
cannot  be  drawn  out  of  the  treasury  except  by  act  of  legisla- 
ture passed  two  years  prior  thereto.2  Neb.  state  university  re- 
gents cannot  dispose  of  the  endowment  fund  or  that  arising  from 
the  f -mill  tax,  in  absence  of  statute  ;3  and  the  Mo.  Constitution 
abrogated  the  continuing  appropriations  made  by  act  of  1875.* 
In  N.  Y.  it  was  held  that  the  state  superintendent  has  general 
supervision  of  the  normal  schools.5  A  statute  directing  that 
normal  schools  be  sustained  out  of  a  fund  which  the  legisla- 
ture could  not  divert  for  that  purpose,  does  not  render  the 
whole  act  void ;  and  an  act  diverting  common-school  funds  to 
normal-school  purposes  is  invalid.6 

§  112.  Officer,  etc.— Under  K.  I.  Gen.  St.,  ch.  47,  §  5,  and 
the  act  of  1867,  the  school  committee  can  appoint  the  superin- 
tendent of  schools  of  Woonsocket,  only  when  the  council  fails 
to  elect  ;7  the  power  to  appoint  a  superintendent  of  schools  in 
a  union  school  district  is  an  incident  to  that  control  which  the 
district  board  has  over  the  schools  of  the  districts  ;8  under  the 
act  of  1864,  825,  §  12,  the  power  of  appointment  and  removal 
of  principals  and  vice-principals  in  the  common  schools  in  the 
city  of  New  York,  is  vested  in  the  board  of  education ;'  where 
a  director  refuses  to  give  up  the  books  and  papers  of  his  office 
to  claimant,  his  remedy  is  under  How.  St.  Mich.,  ch.  295, 
providing  for  proceedings  to  compel  delivery  of  books  and 


1  State  Female  N.  S.  v.  Auditors,  79  Va.  233. 

2  State  v.  Stover,  47  Kas.  119. 

3  State  v.  Babcock,  17  Neb.  610. 

4  State  v.  Holladay,  66  Mo.  385. 

6  People  v.  Hyde,  89  N.  Y.  App.  11. 


'Gordon  v.  Comm're,  47  N.  Y.  608. 
i  Verry  v.  Woonsocket  Sch.  Com.,  12  R.  I.  578. 
8  Stewart  v.  Sch.  Diet.,  30  Mich.  69. 
8 People  v.  Bd.  Ed.,  2  Abb.  (N.  Y.)  Pr.  N.  S. 
177;  32  How.  Pr.  167. 


OFFICER'S  COMPENSATION.  129 

papers  by  public  officers  to  their  successors.1  In  Ind.,  special 
bond  must  be  given  by  county  superintendents  within  thirty 
days  from  date  of  issuing  of  proclamation  of  governor  announc- 
ing the  making  of  a  contract  for  furnishing  school-books ; 
superintendents  must  file  their  bond  within  thirty  days  after 
election  if  elected  after  the  act ;  where  bond  is  not  given,  party 
is  entitled  to  notice  and  hearing  before  removal  from  office.2 
On  a  bond  to  disburse  the  "funds,"  a  treasurer's  bondsmen 
were  held  liable  for  drafts  and  certificates  of  deposit  which  the 
treasurer  failed  to  turn  over  to  his  successor.3  Where  the 
board  of  education  of  a  district  elected  a  treasurer,  required  a 
bond  with  security,  and  it  was  received  and  acted  upon  by  the 
parties,  this  was  a  sufficient  approval,  without  any  indorsement 
on  the  bond  or  any  entry  on  their  records.*  The  Pa.  Const. 
1874,  prohibited  special  law  incorporating  cities,  or  special  law 
changing  school  districts,  or  regulating  the  affairs  of  officers. 
The  city  of  Wilkesbarre  elected  school  controllers  under  the 
unconstitutional  act  of  1889,  and  at  the  same  time  elected  six 
directors  under  act  of  1854.  These  latter  constituted  the  au- 
thorized school  board.6  If  the  clerk  of  the  district  fail  to  attend 
the  meetings,  the  board  may  appoint  a  clerk  pro  tern.,  and  the 
entries  of  the  clerk  pro  tern,  are  competent  evidence  of  the  pro- 
ceedings of  the  meetings.6  The  clerk  of  district  in  "N.  Y.  under 
the  act  of  1814  need  not  take  the  oath  of  office  within  fifteen 
days  if  he  qualifies  before  any  official  act  is  done,  and  the  col- 
lector may  also  be  clerk  of  the  district.7 

§  113.   Officer's  compensation. — The  act  of  March  5, 1887, 
Nev.,  did  not  repeal  act  of  Feb.  23,  1887,  requiring  district 


i Culver  v.  Armstrong,  (Mich.)  43 N.  W.  776. 
2Rnox  Co.  v.  Johnson,  (Ind.)  24  N.  E.  148. 
s Reed  v.  Bd.  Ed.,  39  Ohio  St.  635. 
*Bartlett  v.  Bd.  Ed.,  59  111.  264;   Green  v. 
Wardell,  17  111.  278. 
—  9 


6  Com.  y.  Reynolds,  137  Pa.  St.  389. 
'Hutchinson  v.  Pratt,  11  Vt.  402:  State  v  Mc- 

Kee,  (Oreg.)  25  P.  292. 
7Howland  v.  Luce,  16  Johns.  (N.  Y.)  135. 


130 


PUBLIC   SCHOOL   LAW. 


attorney  to  serve  as  ex  officio  superintendent  of  school  without 
further  compensation.1  Where  the  district  refuses  to  vote  a 
tax  to  pay  expenses  of  school  officer,  and  he  appeals  but  does 
not  serve  notice  of  appeal  in  time,  it  should  be  dismissed.2  In 
Pa.,  the  city  treasurer  acting  as  school  treasurer  as  required, 
can  draw  salaries  for  both  offices.3  By  the  Ky.  act  of  1884, 
changing  the  commissioners  to  county  superintendents,  the 
commissioners  were  to  be  paid  as  before  out  of  the  school  fund 
until  their  successors  were  elected  and  qualified.*  The  county 
superintendent  cannot  recover  compensation  for  examining 
teachers  at  any  other  time  than  is  provided  in  Iowa  Code, 
§  1766.5  When  the  treasurer  of  a  district  did  not  claim  com- 
pensation for  his  services,  in  an  action  upon  his  official  bond 
for  misuse  of  funds  nothing  should  be  allowed  for  his  services.6 
The  provision  of  111.  Rev.  St.,  ch.  122,  §45,  that  the  county 
collector  shall  pay  over  to  the  township  treasurer  uthe  full 
amount "  of  the  school  tax,  means  the  amount  less  his  commis- 
sion allowed  by  ch.  53,  §  2 1.7  The  superintendent  of  public 
instruction,  Iowa,  has  power  to  approve  of  so  much  of  the  com- 
pensation allowed  to  a  school  fund  commissioner  by  the  clerk, 
sheriff  and  attorney,  as  he  shall  deem  reasonable.8  Where  a 
county  auditor  in  Ind.  performs  duties  in  the  management  of 
the  school  funds,  he  is  entitled  to  compensation.9  Under  §  107, 
of  the  Ind.  school  law,  the  treasurer  is  entitled  to  the  commis- 
sion upon  taxes  levied  by  the  townships  for  building  school- 
houses,  etc.,  authorized  by  §  12  of  the  same  act.10  Under  the 
Ky.  common-school  law  the  commissioner  is  not  entitled  to 


i  State  v.  County  Comm'rs,  (Nev.)  23  P.  935. 

2/«  re  Merrill,  8  N.  Y.  8.  737. 

"City  Scranton  v.  Simpson,  25  W.  N.  C.  517; 

19  A  359;  McCauley  v.  Sch.  Dist,  25  W. 

T<r.  C.  519;  (Pa.)  19  A.  410. 
*Pickett  v.  Harrod,  (Ky.)  5  S.  W.  473. 


6Farrell  v.  Webster  Co.,  49  Iowa,  245. 
«Ind.  Sch.  Dist.  v.  McDonald,  30  Iowa,  564. 
i  People  v.  Wiltshire,  93  111.  260. 
8  Jones  v.  Benton,  4  Greene  ( Iowa)  40. 
»  Wright  v.  McGinnis,  37  Ind.  421. 
lOMyrick  v.  Montgomery  Co.,  33  Ind.  383. 


OFFICERS,  COMPENSATION.  131 

fees  for  each  district  visited,  but  only  for  each  district  reported  ;l 
and  where  an  officer  receives  money  as  pay  when  he  is  not 
entitled  to  the  same,  it  will  be  applied  as  a  payment  to  the 
proper  items.2  Per  diem  includes  fraction  of  day.3  A  member 
of  the  school  committee  of  the  city  of  Manchester,  "N.  JL,  is,  in 
the  absence  of  any  fixed  or  agreed  sum,  entitled  to  reasona- 
ble compensation.4 

§  114.  Officers,  compensation. — In  Iowa,  the  salaries  of 
secretary  and  treasurer  of  board  of  directors  are  a  part  of  the 
necessary  expenses  for  which  the  contingent  fund  is  appropri- 
ated.5 Under  Tenn.  Acts  1873,  ch.  25,  §  8,  the  county  court 
may  regulate  the  pay  of  the  county  superintendent  of  public  in- 
struction ;  and  the  decision  of  the  court  is  final.6  An  account 
verified  by  county  superintendent  for  services  is  prima  facie 
case  in  his  favor.7  A  superintendent  was  entitled  to  his  salary, 
where  the  county  board  had  not  yet,  under  Wis.  Laws  1874,  ch. 
342,  divided  the  county  into  superintendent  districts,  but  had 
treated  such  superintendent  (who  had  been  duly  elected)  as  an 
officer  de  facto  and  de  jure*  Under  the  111.  Stat.,  July  1st, 
1872,  a  county  superintendent  of  public  schools  had  not  author- 
ity to  hold  a  teachers'  institute,  at  the  charge  of  his  county,  un- 
less the  institute  had  been  provided  for  by  the  county  board.9 
Where  superintendent  sues  for  salary,  it  is  error  to  exclude  evi- 
dence that  the  board  knew  of  his  rendering  services  and  ac- 
cepted them.10  The  Wis.  K.  S.,  §§703,  704,  in  relation  to 
counties  having  more  than  15,000  inhabitants  according  to  last 
census,  and  fixing  salary  of  county  superintendents  by  reference 


1  (Pickett  v.  Harrod,  5  S.  W.  R.,  overruled.) 
Pickett  v.  Adams,  15  S.  W.  R.  865;  16  S. 
W.  R.  132. 

«  Pickett  v.  Adams,  16  S.  W.  R.  132. 

3  Smith  v.  Comm'rs,  10  Col.  17. 

*  Manchester  v.  Potter,  30  N.  H.  ( 10  Post. )  409. 

6Yaggy  v.  Disk  Tp.  Monroe,  (Iowa)  45  N. 
W.  553. 


6Haile  v.  Young,  6  Lea  (Tenn.)  501. 
7  Smith  v.  Comm'rs,  10  Col.  17. 
s Clarke  v.  Milwaukee  Co.,  53  Wis.  65. 
'Murray  v.  Bd.  Sup.  Clay  Co.,  81  III.  597. 
10 Davis  v.  Sen.  Diet.,  (Mich.)  45  N.  W.  989. 


132 


PUBLIC   SCHOOL   LAW. 


to  inhabitants,  means  "inhabitants"  as  shown  by  last  census.1 
In  a  suit  against  county  commissioners  for  salary  as  county  su- 
perintendent, pending  proceedings  to  obtain  the  office,  the  county 
was  not  liable  ;8  and  in  Kas.,  salary  of  county  superintendent  is 
determined  from  number  of  school  children  in  the  county,  ex- 
cepting cities  ;8  in  Cal.,  it  is  fixed  by  the  supervisors.*  County 
superintendents  under  Ind.  R.  S.,  1881,  are  not  entitled  to  spe- 
cial compensation  for  making  statistical  reports.6  Acceptance 
of  less  than  legal  amount  of  salary  without  protest  will  not  bar 
an  action  for  remainder.6  In  111.  a  school  treasurer  is  not  en- 
titled to  any  compensation  above  that  fixed  by  the  board  of 
trustees  before  his  appointment,  for  the  performance  of  any  duty 
imposed  on  him  by  law.7  The  collector  of  school  tax  in  Ga. 
could  retain  his  commission  from  tax.8  In  Mich,  the  director 
of  a  school  district  cannot  recover  pay  for  his  services.9  The 
Ohio  Law  of  1853,  §41,  (S.  C.  1360,)  authorizing  county  com- 
missioners to  allow  the  auditor  for  services,  is  not  repealed  by 
act  of  1861,  (58  O.  L.,  7.)10  Where  money  was  appropriated 
by  directors  for  bounties,  and  additional  funds  raised  by  sub- 
scriptions, and  paid  to  a  committee  appointed  by  citizens,  the 
district  was  not  liable  for  the  expenses  of  the  committee.11 

§  115.  Officers,  contract,  etc. — Where  a  school  commis- 
sioner contracts  by  a  writing  showing  on  its  face  that  he  acts  in 
his  official  character,  although  he  does  not  add  his  official  des- 
ignation to  his  signature,  he  is  not  bound  personally.18  A  board 
of  directors  empowered  by  statute,  without  any  limitation,  to 
employ  a  superintendent  of  schools,  may  contract  for  a  term 


i  Geraghty  v.  Ashland  Co.,  ( Wis.)  50  N.W.  892. 
» Wright  v.  Commas,  21  Kas.  478. 
•Comm'rs  v.  McCleary,  13  Kas.  149. 
*  Peachy  v.  Redmond,  59  Cal.  326,  548. 
fiYeager  v.  Gibson  Co.,  95  Ind.  427. 
•O'Herrin  v.  Milwaukee  Co.,  67  Wis.  143. 


^Lovingston  v.  Sch.  Tr.,  99  111.  564. 
8 Mayor  v.  Bd.  Ed.,  87  Ga.  22. 
»Hinman  v.  Sch.  Diet,  4  Mich.  168. 

10  Gallup  v.  Lorain  Co.,  20  Ohio  St.  324. 

11  Hartman  v.  Mt.  Joy  Sch.  Dist.,  68  Pa.  St.  440 
12Lyon  v.  Adamson,  7  Iowa,  509. 


OFFICERS,  CONTRACT,  ETC. 


133 


beginning  after  some  members  of  the  board  go  out  of  office.1 
A  school  director  interested  in  the  sale  of  a  piece  of  property 
may  be  enjoined  from  voting  in  favor  of  the  district  purchasing 
it.8  A  contract  made  by  two  members  of  a  committee  of  three 
authorized  to  build  a  school-house  will  bind  the  district,  espe- 
cially when  ratified  by  user.3  In  Wis.  a  director  must  present 
his  claims  to  the  board  or  at  the  district  meeting,  before  suing 
thereon.*  Where  committee  is  authorized  at  meeting  to  either 
build  a  new  school-house  or  repair  the  old  one,  they  may  do 
either.5  School  directors  cannot  borrow  money  or  give  their 
note  for  a  site  unless  a  vote  first  authorized  the  same,  under 
111.  act,  Scates'  Comp.  445.6  The  appointment  of  school  direct- 
ors by  county  court  of  Ark.  will  be  presumed  regular,  and 
warrants  drawn  by  them  for  teachers'  salaries  will  be  valid.7 
Indictment  against  school  officer  for  neglect  to  perform  act  re- 
quired must  state  that  the  conditions  precedent  (naming  them) 
had  been  performed.8  Where  moderator  of  district  was  ap- 
pointed by  the  assessor  and  director,  on  the  supposition  that 
there  was  a  vacancy,  his  official  acts  are  valid  ;9  and  a  school 
director  appointed,  and  performing  all  the  duties  of  the  office, 
is  a  de  facto  officer,  and  the  district  was  bound  by  his  acts,  in- 
cluding a  contract  with  a  teacher  signed  during  that  time.10 
When  contest  is  against  appointee  of  superintendent,  the  ques- 
tion as  to  whether  he  qualified  cannot  be  inquired  into  if  he 
acted  as  such  and  has  been  ever  since.11  Where  directors  were 
elected  and  acted,  and  their  successors  also  acted  for  years, 
none  but  the  state  can  question  their  right  to  act  because  of 


i  Gates  v.  Sch.  Diet.,  53  Ark.  468. 

2 Appeal  Witmer.  (Pa.)  15  A.  428. 

'Fishery.  Sch.  Dist.,  4  Cuah.  (Mass.)  494. 

*  Forbes  y.  Sch.  Dist.,  10  Wis.  117. 

6  Morse  v.  Sch.  Dist.,  3  Allen  (Mass.)  307. 

e  Sch.  Dirs.  v.  Miller,  54  111.  338. 

^  Pierce  v.  Edington,  38  Ark.  150. 


estate  v.  Demerith,  (N.  H.)  9  A.  99;  State  v. 

Corbett,  (N.  H.)  9  A.  629. 
»Talmadge  Sch.  Dist.  v.  Town  Trs.,  61  Mich. 

373. 

i°Sch.  Dist.  v.  Cowee,  9  Neb.  53. 
11  State  v.  Horton,  19  Nev.  199. 


134 


PUBLIC   SCHOOL   LAW. 


irregularities  in  organization  of  the  district.1  Where  contract 
is  with  parties  not  officers  dejure,  no  recovery  can  be  had  upon 
the  same.2  School  trustees  continue  to  be  officers  de  jure,  as 
well  as  de  facto,  after  the  expiration  of  their  term  of  office  if  no 
successors  to  them  are  elected.3 

§116.  Officer,  district— Pub.  Acts  Conn.  1889,  ch.  125, 
providing  that  the  secretary  of  the  state  board  of  education 
shall  ex  officio  be  a  member  of  the  school  committee  of  every 
town  and  school  district  in  which  is  situated  a  school  whose 
teachers  are  appointed  by  the  state  board  of  education,  is  not 
unconstitutional ;  in  the  absence  of  constitutional  limitation,  the 
legislature  may  make  any  provision  as  to  the  composition  and 
appointment  of  school  committees.*  Residents  of  a  new  school 
district  who  have  children  of  school  age  may  maintain  manda- 
mus to  compel  the  county  judge  to  appoint  trustees  for  such 
district  according  to  the  statute.5 

§117.  Officer,  election. — In  the  election  of  school  ex- 
aminer in  Mich,  by  the  chairmen  of  boards  of  school  inspectors, 
only  a  plurality  of  the  votes  cast  is  necessary  to  an  election.6 
Where  officers  should  have  been  elected  by  ballot  and  are 
unanimously  elected  viva  voce  and  are  acting  and  qualified, 
they  will  not  be  removed  by  quo  warranto.1  In  Pa.,  the  con- 
tinuing members  of  a  school  board  are  not  judges  of  the  legal- 
ity of  any  election  of  directors.8  The  Ark.  statute  requiring 
officers  elected  to  take  the  oath  and  file  it  in  office  of  clerk  of 
county  court  does  not  make  it  the  duty  of  that  court  to  canvass 
the  votes  for  directors.9  The  absence  of  a  proclamation  will 
not  invalidate  a  municipal  election  for  school  directors  if  the 


1  Franklin  Ave.  etc.  v.  Roscoe  etc.,  75  Mo.  408. 
2 White  v.  Sen.  Dist.,  (Pa.)  8  A.  443. 
8  Town  Milford  v.  Powner,  126  Ind.  528. 
*  State  v.  Hine,  59  Conn.  50. 
•Porter  v.  State,  78  Tex.  591. 


'People  v.  Stone,  (Mich.)  44  N.  W.  333. 
» People  v.  Gartland,  (Mich.)  42  N.  W. « 
*Bouton  v.  Koyce,  10  Phil.  ( Pa.)  559. 
»Sch.  Dist.  v.  Bennett,  52  Ark.  511. 


OFFICER,  ELECTION.  135 


election  was  general.1  In  Mass.,  where  the  records  of  a  town 
meeting  showed  an  election  of  a  prudential  and  an  examining 
committee,  only  the  latter  was  construed  to  mean  a  school  com- 
mittee.2 Where,  in  Oct.  1853,  a  school  district,  not  within  any 
incorporated  city  or  village,  under  the  act  of  June  18,  1853, 
elected  trustees,  and  on  the  second  Tuesday  of  Oct.  1858,  the 
plaintiffs  were  duly  elected  under  the  act  of  April  12,  1858, 
the  latter  act  repealed  the  former.3  In  Iowa,  where  an  inde- 
pendent district  having  six  directors  is,  at  a  date  of  a  certain 
election,  reduced  to  less  than  500,  only  one  director  can  be 
elected.*  Where  a  sub-director  took  the  proper  oath,  but  failed 
to  attend  a  meeting  of  the  board  of  sub-directors  on  third  Mon- 
day in  March,  the  board  had  no  authority  to  declare  a  vacancy.5 
A  vote  by  township  trustee  for  himself  for  county  superintendent 
is  void  and  contrary  to  public  policy  ;6  but  where  a  board  of 
township  trustees  elected  one  of  their  own  number  a  member 
of  the  board  of  school  trustees  of  the  same  town,  whereupon  he 
resigned  as  town  trustee,  and  qualified  as  school  trustee,  his 
election  as  school  trustee  was  valid.7 

§  118.  Officer,  election. — The  board  of  education  of  a  city, 
under  Acts  Mich.  1877,  p.  440,  cannot  go  behind  the  statements 
of  election  made  by  their  canvassers  of  any  of  their  members.8 
Where  statute  of  Nev.  provides  for  an  election  in  May  each 
year  for  school  trustees  where  there  are  two  or  more  school 
districts  in  same  election  precinct,  this  does  not  authorize  sepa- 
rate May  election  in  a  precinct  comprising  only  a  portion  of 
several  districts.9  The  Miss,  act  providing  for  election  of 
county  superintendents  in  a  part  only  of  the  counties  of  the 


1  Commonwealth  v.  Reynolds,  8  Pa.  Co.  Ct. 

R.  568. 

aHartwell  v.  Littleton,  13  Pick.  (Mass.)  229. 
*Briggs  v.  Cutwater,  30  Barb.  (N.  Y.)  501. 
4  State  v.  Simpkins,  77  Iowa,  676. 


*  Bennett  v.  Colfax,  53  Iowa,  687. 
«Hornungv.  State,  116  Ind.  458. 
f  State  v.  Meyer.  60  Ind.  288. 

8  People  v.  Bd.  Ed.,  38  Mich.  95. 

9  State  v.  Hanson,  20  Nev.  401. 


136 


PUBLIC   SCHOOL   LAW. 


state  is  not  unconstitutional.1  Act  S.  D.  1891,  ch.  9,  §  T,  mak- 
ing it  the  duty  of  municipal  corporations  to  hold  an  election  at 
which  a  new  board  of  education  shall  be  chosen,  leaves  the 
time  for  holding  it  to  be  determined  by  the  municipality ;  and 
the  manner  of  conducting  such  election  is  the  same  as  other 
municipal  elections,  except  so  far  as  the  act  provides  other- 
wise ;2  and  this  act,  providing  for  the  election  of  a  new  board, 
does  not  oust  from  office  the  members  of  the  old  board  until 
the  new  board  is  elected  and  qualified.2  If  the  clerk,  who  has 
been  irregularly  elected,  holding  the  office  de  facto,  regularly 
calls  an  annual  meeting  of  the  district,  the  officers  elected  then 
are  legally  elected.3  Where  Wis.  act  of  incorporation  provided 
for  the  annual  election,  and  a  subsequent  general  law  provided 
for  the  election  of  directors  every  three  years,  the  latter  did  not 
apply  to  the  district  in  question.4  In  S.  C.,  upon  the  establish- 
ment of  a  new  county,  a  school  commissioner  was  elected  a 
year  before  the  assembly  elections,  and  accepted  a  commission 
"to  continue  in  force  until  the  next  general  election";  he  could 
not  hold  office  after  his  successor,  elected  at  such  general  elec- 
tion, had  qualified.6  Where  the  constitution  provides  for  the 
annual  election  of  only  one  school  inspector,  and  a  statute  pro- 
vides for  the  election  of  two,  the  constitutionality  of  the  statute 
will  not  be  passed  upon  in  a  proceeding  to  review  the  action  of 
the  board  in  altering  a  district,  where  the  action  of  the  board 
was  unanimous.8  Under  Mich,  act  1885,  "majority"  to  elect 
trustees  and  "other  officers"  means  moderator,  director,  and 
assessor ;  if  none  receives  a  majority  vote,  the  old  officers  hold 
over.7  The  plaintiffs  suing  as  trustees  of  a  school  district,  their 


i  Wynn  v.  State,  (Miss.)  7  So.  353. 

s/«  re  Construction,  (S.  D.)  48  N.  W.  812. 

8  Woodcock  v.  Bolster,  35  Vt.  632. 

*  State  v.  Perkins,  13  Wis.  411. 


epettigrew  v.  Bell,  (S.  C.)  12  S.  E.  1023. 

•Donough  v.  Hollister,  82  Mich.  309. 

^ Cleveland  v.  Amy,  (Mich.)  50  N.  W.  293. 


OFFICER,  LIABILITY. 


137 


affidavits  and  bonds  were  sufficient  evidence.1  On  certiorari, 
to  reverse  a  tax,  the  legal  existence  of  the  corporation  cannot 
be  tried  collaterally.8 

§  119.  Officer,  liability. — Where  a  commissioner  collects 
&  school  fund  he  cannot  avoid  liability  therefor  by  claiming 
that  the  funds  do  not  belong  to  his  office.8  Under  111.  Rev. 
Stat.,  ch.  122,  §  77,  for  a  misappropriation  of  school  funds  by 
school  directors,  a  court  of  equity  will  not  interfere ;  there  is  a 
remedy  at  law.*  In  an  action  on  treasurer's  bond  for  loaning 
school  fund  on  insufficient  security,  it  is  error  to  permit  wit- 
nesses to  testify  that  they  never  heard  any  dissatisfaction  ex- 
pressed in  regard  to  the  loan.5  If  a  township  trustee,  relying 
entirely  upon  the  judgment  of  the  board  of  directors,  and  against 
his  own  judgment,  loans  school  fund  on  insufficient  security, 
whereby  a  loss  occurs,  his  official  bond  is  liable  therefor.6  The 
final  report  made  by  a  school  township  treasurer,  and  the  en- 
tries in  his  books  made  by  him  in  such  capacity,  are  conclusive 
•evidence  against  him  and  his  sureties  as  to  the  amount  due,  in 
an  action  on  his  bond.6  Where  a  township  collector  pays  school 
moneys  belonging  to  a  certain  school  district  to  any  person 
other  than  the  treasurer  of  the  proper  township,  he  will  be  guilty 
of  a  breach  of  his  bond,  and  liable  to  nominal  damages,  although 
the  district  loses  nothing.7  If  school  directors  exercise  powers 
;and  functions  not  conferred  upon  them,  they  are  responsible  for 
all  losses  that  may  occur  ;8  they  may  borrow  money  for  certain 
enumerated  purposes,  and  their  treasurer  is  the  only  proper 
custodian ;  should  they  place  it  in  the  hands  of  anyone  else,  it 
is  at  their  own  risk.8 


lEads  v.  Wooldridge,  27  Mo.  251. 
*  State  v.  Donahay,  30  N.  J.  L.  404. 
»  State  v.  May,  22  Ark.  445. 
«  Moore  v.  Fessenbeck,  88  111.  422. 
•*Bd.  Trs.  v.  Baker,  34  111.  App.  620. 


«Longan  v.  Taylor,  13  111.  App.  263,  affirmed 

in  22  N.  E.  745. 
^  People  v.  Teazel,  84  111.  539. 
8  Adams  v.  State,  82  111.  132. 


138 


PUBLIC   SCHOOL   LAW. 


§  120.  Officer,  liability. — Where  the  treasurer  neglects  to 
present  a  note  against  decedent  for  allowance  against  his  estate, 
where  it  does  not  appear  but  that  the  sureties  are  solvent  or 
that  the  debt  is  lost,  no  more  than  nominal  damages  can  be  re- 
covered of  the  treasurer.1  Under  111.  Law  of  1857,  §§45,  46, 
and  62,  in  actions  for  school  taxes,  the  judgment  on  a  collector's 
bond  should  find  the  amounts  respectively  due  to  each  district.8 
Even  though  the  school  fund  of  a  township  may  not  be  entitled 
to  certain  sums  paid  to  its  treasurer,  yet  the  treasurer  collecting 
the  same  is  liable  therefor  to  the  board  of  trustees.3  In  a  pro- 
ceeding for  mandamus  against  school  trustees,  if  costs  are 
awarded,  it  should  be  against  them  as  trustees,  and  not  person- 
ally.* School  directors  who  had  directed  the  township  treas- 
urer to  receive,  in  lieu  of  money  due  the  district,  certain  coupons 
upon  the  district  bonds,  are  estopped  from  tendering  back  the 
coupons  and  demanding  payment  of  the  money.6  If  a  school 
treasurer  releases  a  mortgage  given,  due  the  school  fund  of  his 
township,  without  an  order  of  the  board  of  trustees,  entered 
upon  their  journal,  and  subscribed  by  their  president  and  clerk, 
he  will  be  liable  upon  his  official  bond  for  any  loss.6  A  clerk 
of  school  board  should  not  be  taxed  with  costs  personally  when 
the  record  is  quashed.7 

§  121.  Officer,  liability, — In  an  action  against  township 
treasurer  of  111.  for  not  taking  mortgage  security  in  loaning 
school  funds,  it  is  no  defense  that  board  of  education  authorized 
it.8  Where,  in  an  action  on  the  bond  of  a  school  trustee  for  a 
shortage  in  the  funds,  it  appears  that  he  paid  money  out  of  the 
special  school  fund,  on  account  of  the  common-school  fund,  he 


iMcHenry  v.  Sch.  Trs.,  68  111.  140. 
2Tappan  v.  People,  67  111.  339. 
SLovington  v.  Sch.  Trs.,  99  111.  564. 
*Boone  v.  People,  4  111.  App.  231. 


6Humiston  v.  Sch.  Trg.,  7  111.  App.  122. 
«Bd.  Trs.  v.  Mesenheimer,  78  111.  22. 
7  Trustees  v. 
8Bd.  Trs. 


v.  Shepherd,  (111.)  28  N.  E.  1073, 
v.  Baker,  24  111.  App.  231. 


OFFICES,  LIABILITY. 


should  be  given  credit  on  the  amount  thus  paid.1  An  agent  of 
the  surplus  revenue  is  bound  to  pay  the  interest  received  by 
him  to  the  school  commissioner,  without  demand.2  An  indict- 
ment against  a  school  commissioner,  for  failing  to  make  a  report 
to  the  county  auditor  of  moneys  received  and  disbursed  by  him, 
should  contain  an  averment  that  money  had  been  received  by 
the  defendant,  which  he  was  bound  to  report.3  Under  the  Ind. 
act  of  1833,  the  sureties  on  a  commissioner's  bond  are  liable 
for  his  acts  only  during  the  term  of  three  years.*  A  school 
commissioner  may  be  indicted  for  a  breach  of  duty  ;  but  the  in- 
dictment, to  be  valid,  must  show  the  condition  of  his  bond  to- 
be  broken.5  School  trustees  are  not  liable  for  acts  of  another 
trustee  in  improper  use  of  money  where  they  did  not  cooperate.* 
In  an  action  against  the  treasurer  of  the  city's  school  trustees,, 
to  recover  for  interest  received  by  him  on  the  funds  in  his  hands, 
the  interest  received  by  him  being  interest  accrued  upon  warrants 
issued  in  his  favor  by  the  county  auditor  on  the  county  treas- 
urer, for  the  funds  themselves,  and  paid  by  the  latter  out  of 
those  funds,  the  defendant  was  liable.7  Under  Ind.  K.  S.  1876, 
p.  781,  §  7,  when  judgment  is  recovered  against  a  township 
trustee  on  his  bond,  for  default  in  his  duties  relating  to  schools 
and  school  revenues,  ten  per  cent,  damages  upon  the  amount 
must  be  included  in  the  judgment.8  The  liability  of  the  treas- 
urer of  a  school  district  is  absolute  for  all  funds  which  come 
into  his  hands  in  his  official  capacity  ;9  and  where  a  treasurer 
has  settled  and  been  discharged,  the  fact  that  his  books  are  con- 
fused does  not  of  itself  create  any  liability.10  A  prudential 
comrnittee-man,  chosen  by  the  district,  is  not  liable  to  the  district 


i  Finney  v.  State,  126  Ind.  577. 
2Mullikin  v.  State,  7  Blackf.  (Ind.)  77. 
sLathrop  v.  State,  6  Blackf.  (Ind.)  503. 
*Tuley  v.  State,  1  Ind.  500. 
6Lathrop  v.  State,  6  Blackf.  (Ind.)  503. 


•  State  v.  Julian,  93  Ind.  293. 
1  Hadley  v.  State,  66  Ind.  271. 
«Goldsberry  v.  State,  69  Ind.  430. 
•Bluff  Creek  v.  Hardenbrook,  40  Iowa,  130. 
1° Parish  Sen.  B.  v.  Packwood,  (La.)  7  So.  537. 


140 


PUBLIC   SCHOOL   LAW. 


for  money  received  by  him  from  town  treasury,  raised  by  the 
town,  appropriated  to  the  district,  and  placed  to  the  credit  of 
district  by  town  treasurer;1  and  a  clerk  de  facto  of  a  school  dis- 
trict is  not  liable  for  certifying  to  the  assessor  that,  at  a  legal 
and  duly  organized  meeting,  it  was  voted  to  raise  a  certain  sum 
of  money,  on  the  ground  of  illegality  in  the  meeting  at  which 
he  was  elected  clerk,  or  informalities  and  irregularities  in  call- 
ing and  conducting  the  second  meeting.8 

§122.  Officer,  liability.  —  In  an  action  for  moneys  un- 
expended in  the  hands  of  a  school  agent  he  cannot  claim  that 
he  was  not  sworn,  nor  retain  a  balance  for  services,  which  was 
to  be  appropriated  to  certain  purposes  and  belonged  to  the  dis- 
trict.8 A  school  district  cannot  maintain  assumpsit  against  the 
town  treasurer  for  school-moneys,  upon  proof  merely  that  such 
moneys  have  come  to  his  hands ;  there  must  be  proof  of  some 
default  on  his  part  ;*  but  a  township  treasurer  may  not  receive 
for  school-moneys  anything  which  the  law  has  not  authorized 
to  be  so  received,  and,  if  he  does  so  and  receipts  for  the  taxes, 
he  must  make  good  the  amount.6  A  school-district  clerk  draw- 
ing a  warrant  in  favor  of  a  teacher  for  his  wages,  known  to 
him  to  be  not  licensed,  is  liable  for  penalty,  under  Minn.  Stat. 
1887.'  A  director  or  freeholder  may  bring  an  action  against 
trustee  for  penalty  imposed  for  not  providing  school  when 
funds  and  school  were  voted  for  by  district.7  Where  a  statute 
imposes  a  liability  on  an  officer  for  funds  coming  into  his  hands 
and  requires  him  to  pay  and  account  for  same  without  condi- 
tions, or  limiting  his  liability,  the  obligors  on  his  bond  are 
liable  for  the  funds,  even  when  the  same  have  been  lost  or 


*Sch.  Dist.  v.  Kandall,  7  Cush.  (Mass.)  478. 
« Allen  v.  Metcalf,  17  Pick.  (Mass.)  208. 
«Sch.  Dist.  v.  Deshon,  51  Me.  454. 
•*67  Me.  239. 


6  People  v.  Wright,  34  Mich.  371. 
6Sch.  Dist.  v.  Thelander,  31  Minn.  333. 
*  Soule  v.  Thelander,  31  Minn.  227. 


OFFICER,  LIABILITY. 


stolen  without  any  fault  on  his  part  j1  and  the  discharge  from 
liability,  by  the  vote  of  the  district  and  by  the  board  of  educa- 
tion, of  a  treasurer,  for  funds  stolen  from  him,  will  not  avail 
him  or  his  sureties.2  County  superintendent  is  not  liable  in 
damages  for  manner  in  changing  district  and  boundary  where 
one-third  of  legal  voters  petition  therefor.3  In  an  action 
against  a  treasurer,  it  was  no  defense  that  he  had  made  out  his 
account,  which  the  district  had  accepted,  or  that  he  deposited 
the  money  to  his  own  credit  in  a  bank,  and  directed  that  it  be 
paid  over  to  the  holders  of  matured  district  bonds,  but  before 
this  was  done  the  bank  failed.*  The  selectmen  are  not  liable 
for  indictment  for  failing  to  remove  a  school-house  to  a  new 
site,  designated  by  report  of  a  committee,  if  the  new  site  was 
not  the  property  of  the  school  district.5  Under  N.  J.  Nix.  Dig. 
735,  §§  9,  10,  it  is  the  duty  of  the  trustees  to  make  out  a  list  of 
the  children  capable  of  attending  school ;  the  trustees  were  not 
civilly  responsible  for  error  or  fraud  therein,  and  the  truth  of 
the  list  could  not  be  collaterally  questioned.6  A  special  meet- 
ing of  the  voters  of  a  district  may  vote  a  tax  although  such, 
has  been  refused  at  the  annual  meeting;  and  a  judgment  on 
appeal  remitting  the  tax  will  protect  the  collector,  but  not  for 
his  refusal  to  collect  taxes  which  have  not  been  appealed.7  To. 
make  district  liable  on  note  it  must  appear  the  debt  was  legal 
obligation;8  and  a  note  promising  "as  trustees  of,  &c.,"  but 


.  S.  v.  Prescott,  3  How.  578;  U.  S.  v.  Dashiel, 
4  Wall.  182;  Boyden  v.  U.  S.,  13  Wall.  17; 
Inhabitants  v.  Hazzard,  12  Gush.  112;  In- 
habitants v.  McEachron,  33  N.  J.  L.  339; 
Com.  v.  Comly,  3  Pa.  St.  372;  State  v.  Har- 
per, 6  Ohio  St.  607;  Diet.  Tp.  v.  Morton, 
37  Iowa,  550;  Thompson  v.  Bd.,  30  111.  99; 
Halbert  v.  State,  22  Ind.  125;  Morbeck  v. 
State,  28  Ind.  86;  Ward  v.  Sch.  Dist.,  10 
Neb.  293;  Wilson  v.  Wichita  Co.,  67  Tex. 
647;  State  v.  Nevin,  19  Nev.  162;  State  v. 
Moore,  74  Mo.  413;  State  v.  Powell,  67  Mo. 
395;  Com.  v.  Lineberger,  3  Mont.  231;  Bd. 
Ed.  v.  Jewell,  44  Minn.  427;  Com.  v.  Jones, 
18  Minn.  119;  Co.  Com.  v.  Gilbert,  19  Minn. 
214;  Redwood  Co.  v.  Tower,  28  Minn.  45. 


«Bd.  Ed.  v.  Jewell,  44  Minn.  427. 

»Sch.  Dist.  v.  Wheeler,  25  Neb.  199;  Cowleu 

v.  Sch.  Dist.,  (Neb.)  37  N.  W.  493. 
*  Ward  v.  Sch.  Dist.,  10  Neb.  293. 
«State  v.  Bailey,  21  N.  H.  ( 1  Fost.)  185. 
«Tp.  of  Morris  v.  Carey,  27  N.  J.  L.  (3Dutch.> 

T  State  v.  Lewis,  35  N.  J.  L.  170. 

8  Sch.  Dist.  v.  Thompson,  5  Minn.  221. 


142  PUBLIC   SCHOOL  LAW. 

signed  individually,  does  not  render  the  signers  individually 
liable;1  but  where  they  promise  as  individuals  and  sign  offi- 
cially it  is  an  individual  liability,2  and  where  they  step  outside 
official  duties  they  must  show  authority.8 

§  123.  Officer,  liability. — The  members  of  a  board  of 
trustees  of  the  common  schools  of  the  city  of  New  York  are 
not  liable  in  an  action  against  them  personally  for  the  negli- 
gence of  workmen  employed  by  them  ;*  and  in  an  action  against 
a  trustee  for  the  neglect  of  the  duties  of  his  office,  a  declaration 
in  very  general  terms  is  sufficient.5  The  trustees  of  union  free 
schools  (N.  Y.  Laws  1864,  ch.  555,  tit.  9)  are  individually 
liable  for  personal  injuries  sustained  by  a  teacher  in  falling 
through  a  floor  which  has  become  defective  through  their 
default  and  neglect  ;6  and  the  board  of  education  of  the  city  of 
New  York  is  liable  in  its  corporate  capacity  for  personal  injuries 
caused  by  its  neglect.7  The  board  of  education  created  under 
1ST.  Y.  Laws  1864,  ch.  555,  as  to  union  free-school  districts,  are 
not  individually  liable  for  a  neglect  to  perform  a  duty  imposed 
on  the  corporation ;  the  liability  rests  upon  the  corporate  body.8 
It  seems,  however,  that  a  member  charged  by  the  board  as  its 
agent,  distinct  from  its  corporate  relation,  with  a  specific  duty, 
is  individually  liable  for  his  neglect  thereof  ;9  but  a  judgment 
against  all  the  members  jointly,  for  a  personal  injury  caused  by 
one's  neglect  as  agent  or  servant,  is  error.9  School  directors 
who  vote  for  a  misapplication  of  the  public  funds  in  payment 
of  a  teacher,  are  personally  liable  to  the  township  ;10  and  the 
treasurer,  who  was  also  a  school  director,  and  voted  in  favor  of 
such  payment,  cannot  shield  himself  under  the  warrant  of  the 


i  Sanborn  v.  Neal,  4  Minn.  83. 

8  Fowler  v.  Atkinson,  6  Minn.  412;  Bingham 

v.  Stewart,  13  Minn.  406. 
8  Sen.  Dial.  v.  Thompson,  5  Minn.  221. 
4  Donovan  v.  McAlpin,  46  N.  Y.  Super.  Ct.  111. 


Ii  v.  Miller,  13  Wend.  (N.  Y.)  66. 


iper 
.)« 


«Bassett  v.  Fish,  19  N.  Y.  Supreme  Ct.  209. 
i  Donovan  v.  N.  Y.  Bd.  Ed.,  44  N.  Y.  S.  Ct.  53. 
«  ( Reversing  s.  c.,  12  Hun,  N.  Y.,  209  )    Baa- 
sett  v.  Fish,  75  N.  Y.  303. 
"Bassett  v.  Fish,  75  N.  Y.  303. 
10  Dickinson  v.  Linn,  36  Pa.  St.  431. 


OFFICERS,  POWER. 


143 


board.1  When  school  directors  neglect  to  keep  the  schools 
open  as  long  as  is  prescribed  by  law,  they  may  be  removed,  but 
are  not  liable  to  indictment.2  A  certified  settlement  by  the 
proper  officers  of  the  account  of  the  treasurer  of  a  school  dis- 
trict, is  conclusive  if  not  appealed  from.3  Five  years'  acqui- 
escence on  the  settlement  of  collector's  account  by  the  township 
auditors,  precludes  the  board  from  objecting  to  the  record 
thereof  as prima  facie  evidence;  the  auditors  having  destroyed 
his  vouchers.*  The  penalty  for  non-performance  of  duties  of 
office,  under  the  act  of  N.  Y.  1819,  does  not  extend  to  any  par- 
ticular act,  but  to  general  non-performance  of  the  duties  of 
office.5  Where  a  town  in  Mass,  does  not  provide  for  care  of  its 
school-houses,  the  school  committee  employing  a  suitable  person 
to  cut  down  a  tree  in  the  school-yard  are  not  liable  for  damages 
from  his  negligence.6  School  districts  in  Pa.  are  not  liable  for 
negligence  of  their  employes  ;7  and  for  trespasses  committed  by 
school  officers  they  are  personally  liable  and  not  the  district  ;8 
but  school  officers  in  Minn,  are  not  liable  for  negligence  in 
making  repairs.' 

§  124.  Officers,  power. — The  board  of  education  of  the  city 
and  county  of  San  Francisco  cannot  delegate  their  power  of 
visitation  and  inspection  to  other  officers  appointed  by  them, 
and  they  cannot  employ  inspecting  teachers  to  visit,  inspect, 
advise,  and  instruct.10  Error  in  appointing  a  building  commit- 
tee to  contract  is  cured  by  discharging  committee,  and  the  dis- 
trict board  acting  instead.11  By  law,  state  of  Ind.  is  divided 
into  three  classes  of  distinct  municipal  corporations,  for  school 


1  Dickinson  v.  Linn,  36  Pa.  St.  431. 

2  McElhiney  v.  Commonwealth,  22  Pa.  St.  365. 
»  Porter  v.  Sch.  Dirs.,  18  Pa.  St.  144. 

*  Scott  v.  Strawn,  85  Pa.  St.  471. 
*Spafford  v.  Hood,  6  Cow.  (N.  T.)  478. 
«McKenna  v.  Kiinball,  (Mass.)  14 N.  E.789. 


T  Ford  v.  Sch.  Dist.,  (Pa.)  15  A.  812. 
8  Sch.  Dist.  v.  Williams,  38  Ark.  454. 
»  Bank  v.  Brainerd  Sch.  Dist.,  51  N.  W.  814. 

10  Barry  v.  Goad,  (Cal.)  26  P.  785. 

11  Maher  v.  State,  ( Neb.)  49  N.  W.  436. 


144 


PUBLIC   SCHOOL   LAW. 


purposes,  to  wit,  "each  civil  township  and  each  incorporated 
town  or  city  in  the  several  counties,"  and  within  the  territorial 
limits  of  each  of  these  school  corporations  each  is  entitled  to 
the  control  of  its  school  revenue ;  and  the  school  trustees  of  a 
town  within  the  limits  of  a  township  were  entitled  to  the  school 
funds  of  the  township  that  belonged  to  such  town.1  Where  by 
act  Ga.  1889,  pp.  1305,  1306,  election  notice  to  determine 
whether  a  local  school  should  be  established  was  published 
once  a  week  for  four  weeks,  and  the  last  publication  was  inad- 
vertently omitted,  the  omission  may  be  treated  as  a  mere  irreg- 
ularity if  more  than  two-thirds  of  the  qualified  voters  actually 
voted.8  The  failure  of  school  trustees,  granting  a  petition  for 
the  formation  of  a  new  district,  to  file  a  map  and  to  order  an 
election  of  school  directors,  will  not  invalidate  the  formation  of 
the  new  district.8  Where  school  trustees  are  compelled  by 
mandamus  to  grant  petition  for  formation  of  a  new  school  dis- 
trict, the  legality  of  such  school  cannot  be  collaterally  attacked.3 
An  assessor  can  be  compelled  by  mandamus  to  pay  sum  appro- 
priated by  school  district,  at  its  annual  meeting,  to  moderator 
for  money  paid  by  him  for  district.*  The  courts  may  compel 
school  directors  to  perform  their  duties,  or  restrain  them  when 
they  transcend  their  powers ;  but  they  cannot  interfere  in  mat- 
ters of  discretion.5  The  board  of  education  of  San  Francisco 
may  maintain  ejectment  for  a  school  lot  ;6  but  school  directors 
can  exercise  only  such  powers  as  are  expressly  granted  ;7  but  if 
district  has  no  school-house,  and  needs  one,  the  trustees  should 
secure  a  room.8  When  a  trustee  of  school  funds  is  such  by 
color  of  title,  his  acts  are  valid  as  regards  third  persons ;  much 


1  Johnson  v.  Smith,  64  Ind.  275. 

8  Iran  v.  Gregory,  86  Ga.  605. 

»Sch.  Dir.  v.  Sch.  Dir.,  (111.)  28  N.  E.  49. 

*  Phillips  v.  Sch.  Diet.,  (Mich.)  44  N.  W.  439. 


*Wharton  v.  Sch.  Dirs.,  42  Pa.  St.  358. 
«Bd.  Ed.  v.  Donahue,  53  Cal.  190. 
*  Sch.  Dir.  v.  Fogleman,  76  111.  389. 
8  Gould  v.  E.  E.  Sch.  Dist.,  7  Minn.  145. 


OFFICER,  POWERS.  145 


more  when  he  is  fully  in  office,  except  as  to  giving  bond  and 
taking  the  oath.1  Two  of  the  board  of  trustees,  in  111.,  concur- 
ring, may  perform  any  act  which  the  board  is  authorized  to  do, 
and  their  acts  will  be  valid  until  vacated  by  direct  proceedings  f 
but  in  N.  Y.  two  trustees  of  a  school  district  cannot  act  in  the 
performance  of  their  duties,  except  when  all  three  are  present, 
whether  the  third  one  refuses  to  act,  or  not.8 

§  125.  Officer,  powers.— Act  111.  1889,  p.  296,  art.  5,  §  19, 
does  not  invalidate  official  actions  taken  by  board  of  directors 
at  a  meeting  at  which  all  the  directors  are  present,  though  such 
meeting  is  not  a  regular  one,  nor  one  specially  called  in  a  stat- 
utory manner.*  In  Oreg.  the  oldest  director  in  office  shall 
preside  as  chairman  of  the  meetings  of  the  district ;  this  means 
the  one  who  has  held  office  longest.6  A  district  in  Mass,  may 
choose  one  member  of  a  prudential  committee  and  then  adjourn 
and  choose  the  remainder  at  adjourned  meeting,  and  a  majority 
of  the  prudential  committee  may  act  for  the  whole  when 
minority  refuses.6  In  Mich.,  the  board  of  township  school 
inspectors  while  engaged  in  altering  the  boundaries  of  a  district, 
may  adjourn  their  meeting  to  another  time  and  place.7  In  a 
sub-district  in  Iowa,  containing  but  five  pupils,  the  board  could 
direct  that  no  school  should  be  taught  during  the  winter  in  their 
district,  and  provide  for  the  attendance  of  their  pupils  else- 
where.8 The  Kevision  of  1860,  §2133,  Iowa,  allowing  an 
appeal  to  the  county  superintendent,  does  not  clothe  the  latter 
officer  with  judicial  powers.9  Under  the  Const.  Iowa,  the  educa- 
tional board  have  the  primary  power  to  provide  for  all  public 


i  Rhodes  v.  McDonald,  24  Miss.  418. 
3Trs.  v.  Allen,  21  111.  120;  Schofield  v.  Wat- 
kins,  22  111.  66. 
»  Whitford  v.  Scott,  14  How.  (N.  T.)  Pr. 


Bow.  (N. 

.  (N.Y.) 


Lee  v.  Parry.  4  Den.  (N.  Y.)  125;  Keeler 
v.  Frost,  22  Barb.  (N.  Y.)  400. 

—  10 


« Lawrence  v.  Trainer,  (HI.)  27  N.  E.  197. 
6  State  v.  McKee,  (Oreg.)  25  P.  292. 
sKingsbury  v.  Sen. Diet.,  12  Mete.  (Mass.)  99. 
?Donough  v.  Hollister,  82  Mich.  309. 
8  Potter  v.  Fredericksbnrg,  40  Iowa,  369. 
»  Sen.  Diet  v.  Pratt,  17  Iowa,  16. 


146 


PUBLIC   SCHOOL   LAW. 


instruction  j1  and  though  the  legislature  can  annul  acts  of  the 
board  they  cannot  originate  measures,  and  they  cannot  act  until 
the  board  of  education  is  organized  ;*  and  the  act  of  Mch.  12, 
1858,  so  far  as  it  provides  for  a  system  of  public  education,  is 
void.1  Under  Iowa  Code,  tit.  12,  ch.  9,  a  sub-director  cannot 
interfere  with  the  use  of  apparatus  in  schools  of  his  sub-district.2 
The  duties  of  school-district  board  can  only  be  performed  by 
joint  action  of  officers.3  If  a  board  of  education  refuses  to  do 
an  act  required  to  be  done  at  a  particular  time,  and  the  board 
could  be  compelled  to  perform  it,  the  board  may  afterwards,  on 
its  own  motion,  do  the  act.*  Under  Md.  Acts  1872  and  1874, 
the  state  board  of  education  have  a  visitatorial  power  of  the 
most  comprehensive  character,  and  such  power  is,  in  its  nature, 
summary  and  exclusive.5  Section  37,  of  act  of  April  6th,  1863, 
Cal.,  to  provide  for  the  maintenance  and  supervision  of  common 
schools,  is  not  repealed  as  to  San  Mateo  county,  by  §  9,  of  act 
of  Feb.  6,  1864,  nor  by  §  12,  of  act  Mch.  24,  1864.6  Trustees, 
in  cases  beyond  their  authority  and  duties,  must  show  their 
authority  ;7  and  the  action  of  county  board  in  Minn,  in  forming 
districts  is  legislative  and  not  judicial,  and  cannot  be  reviewed 
on  certiorari.8  A  party  acting  as  prudential  committee  in  a 
school  district  will  be  presumed  to  have  been  authorized.9  A 
trustee  for  good  cause  may  discontinue  a  school  in  Ind.  where 
there  are  only  four  scholars  and  other  schools  are  convenient.10 
§  126.  Officer,  qualification. — School  commissioner  of  the 
city  of  New  York  must  be  at  the  time  a  resident  of  the  ward 
for  which  he  is  chosen  ;  and  a  removal  from  the  ward  for  which 


i"P  st.  Tp.  v.  Dubuqne,  7  Iowa,  262. 
=  1 1  -it.  Tp.  v.  Meyers,  (Iowa)  49  N.  W.  1042. 
»  s   ite  v.  Sch.  Dist.,  (Neb.)  33  1ST.  W.  480. 
<<;  K-rothers  v.  Clinton  D.  Bd.  Ed.,  16  W.  Va. 

5.7. 
&  Wiley  v.  Allegany  Co.  Comm'rB,  51  Md.  401. 


'People  v.  San  Francisco  &c.  R.  E.  Co.,  28 
Cal.  254. 

*  Sch.  Dist.  v.  Thompson,  5  Minn.  280. 
«Moode  v.  Stearns  Co.,  (Minn.)  45  N.  W.  435. 

•  State  v.  Williams,  27  Vt.  755. 
i°  Tufts  v.  State,  119  Ind.  232. 


OFFICER,  QUALIFICATION. 


147 


he  was  chosen  vacates  the  office.1  Pa.  act  1867,  providing  that 
service  as  a  county,  city  or  borough  superintendent  is  a  suffi- 
cient test- of  qualification  on  re-election,  does  not  preclude  other 
objections  when  the  person  is  unfit  to  hold  the  office.2  Pa.  act 
providing  that  persons  residing  on  certain  lands  in  the  township 
of  N.  are  attached  to  the  borough  of  S.  for  school  purposes, 
and  shall  be  entitled  to  the  right  to  vote  for  and  serve  as  school 
directors  in  said  borough,  is  not  contrary  to  constitution  pro- 
viding that  electors  shall  reside  in  their  election  district.8  In 
N.  Y.  the  same  person  may  be  appointed  district  clerk  and  col- 
lector of  the  district  at  the  same  time  ;*  and  in  N.  H.  the  offices 
of  selectman  and  school  committee  may  be  held  at  same  time 
by  the  same  person.5  The  assessment  by  a  sole  prudential 
committee  of  a  district,  who  is  ineligible  for  that  office,  is  in- 
valid.6 The  appointment  of  district  collector  under  N.  Y.  L. 
1864  should  be  made  in  writing,  as  required  by  the  statute;7 
but  a  parol  appointment  of  the  collector  by  a  sole  trustee  of  the 
district,  his  giving  bond  and  the  approval  by  the  trustee,  and 
the  delivery  of  the  tax  warrant  to  him,  constitute  him  an  officer 
de  facto  ?  but  the  government  may  try  the  right  to  the  office 
by  quo  warranto /  his  title  may  also  be  questioned  where  he  is 
sued  for  an  act  which  he  can  only  justify  as  an  officer.7  Sec- 
tion 27,  act  of  April  17,  1873,  requiring  an  applicant,  before 
appointment  as  county  superintendent,  to  submit  with  his  appli- 
cation a  certificate  from  the  board  of  examiners,  is  constitu- 
tional, and  an  appointment  without  such  certificate  is  invalid  ;8 
but  it  has  been  held  that  the  statute  of  Miss,  which  provides 
that  superintendent  of  education  must  have  a  first-grade  certifi- 


1  People  v.  Bd.  Ed.,  1  Den.  (N.  Y.)  647. 

2  Com.  v.  Wickersham,  90  Pa.  St.  311. 
8  Colvin  v.  Beaver,  94  Pa.  St.  388. 

*  Rowland  v.  Luce,  16  Johns.  (N.  Y.)  135. 


6  Andover  v.  Carr,  55  N.  H.  452. 

s  Woodcock  v.  Bolster,  &5  Vt.  632. 

7  Hamlin  v.  Dinsroan,  41  How.  ( N.  Y.)  Pr.  132 

8  Burnham  v.  Sumner,  50  Miss.  517. 


148  PUBLIC   SCHOOL   LAW. 

cate  is  unconstitutional,  and  that  anyone  an  elector  is  eligible.1 
Laws  Mo.  1887,  p.  273,  §  5,  which  provides  no  person  shall  be 
eligible  for  a  director  "who  shall  not  have  paid  a  school  tax 
within  said  city  for  two  consecutive  years  immediately  preced- 
ing his  election,"  means  a  tax  assessed  on  property  in  which 
the  school  director  has  an  interest  subject  to  taxation  at  the 
date  of  assessment  or  date  of  payment,  paid  at  any  time  within 
two  consecutive  calendar  years  next  preceding  the  year  of  the 
director's  election.2 

§  127.  Officer,  Qualification. — A  payment  by  a  copartner- 
ship of  a  tax  in  part  for  school  purposes  against  its  personal 
property  by  one  who  is  a  member  of  the  copartnership  at  the 
time ;  the  payment  of  taxes  on  land  by  one  having  a  tenancy 
by  the  curtsey  initiate  therein,  out  of  his  own  means ;  and 
the  payment  of  delinquent  taxes  on  land  purchased  by  the  payor, 
though  the  payment  was  made  for  the  express  purpose  of  quali- 
fying for  the  office,  constitute  a  payment  of  taxes  ;2  but  the  pay- 
ment of  delinquent  taxes  on  land  by  a  stranger  for  the  purpose 
of  qualifying  for  that  office,  or  the  payment  of  taxes  for  the  cur- 
rent year  instead  of  those  for  the  two  years  immediately  preced- 
ing the  election,  or  the  payment  of  a  merchant's  license  which 
does  not  appear  to  be  for  the  benefit  of  the  schools,  are  not 
such  payments  of  taxes  as  will  qualify.2  And  superintendent 
employed  by  board  trustees  in  Mich,  is  not  required  to  have 
teacher's  certificate.3  Clerk  of  district  in  Mass.,  once  duly  sworn 
into  office,  afterward  chosen  clerk  but  not  sworn  again,  may  act 
as  clerk  under  K.  S.,  ch.  23,  §  27.*  The  failure  of  a  moderator 
of  a  school  district  in  Neb.  to  take  oath  of  office  does  not  va- 
cate the  office ;  school-district  officers  are  not  required  to  take 

iWynn  v.  State,  (Mies.)  7  So.  353.  1    'Davis  v.  Sch.  Dist.,  45  Mich.  989. 

*  State  v.  Macklin,  41  Mo.  App.  335.  |   *Sch.  Diet.  v.  Atherton,  12  Mete.  ( Mass.)  105. 


OFFICER,  QUALIFICATION. 


149 


oath  of  office  ;x  and  school  director  in  Vt.  is  not  required  to  be 


sworn. 


§  128.  Officer,  qualification. — In  Ark.  it  is  necessary  for 
the  school  director  to  qualify  within  ten  days  by  subscribing  the 
oath  of  office,  and  filing  the  same  with  the  clerk,  and  until  he 
thus  qualifies,  his  predecessor  is  entitled  to  exercise  the  powers 
of  the  office,  under  Mansf.  Dig.,  p.  6205  ;3  under  Kas.  Stat., 
TT  5594,  5607,  the  failure  of  a  district  treasurer  to  give  bond 
for  nearly  a  year,  where  he  was  elected  his  own  successor,  did 
not  create  a  vacancy  ;*  but  in  a  similar  case  the  sureties  on  his 
original  bond  were  liable  for  succeeding  term.5  Where  director 
accepts  the  office,  no  notice  to  him  is  then  necessary,  and  if  he 
fails  to  file  oath  within  ten  days,  the  term  of  his  predecessor 
will  continue,  in  Ark.9  An  oath  attached  to  the  certificate  is 
same  as  indorsement  on,  and  indorsement  on  face  is  as  good 
as  indorsement  on  back  of  certificate.10  The  oath  of  office  of 
school  director  cannot  be  administered  by  an  election  judge.11 
Where  assessor  and  moderator  are  prevented  from  qualifying 
by  a  conspiracy,  and  tender  their  bonds  and  acceptance  to  proper 
party,  their  acts  are  valid.11  An  assessor  cannot  withhold  the 
funds  in  his  hands  when  the  same  are  properly  demanded  by 
his  successor,  a  fortnight  after  the  latter  has  been  regularly 
elected,  and  has  accepted  and  qualified,  upon  any  claim  that  he 
is  entitled  to  be  first  personally  notified,  officially,  of  such  elec- 
tion and  acceptance  ;12  and  the  oath  of  office  taken  by  the  clerk 
of  a  district  will  be  presumed,  when  found  on  the  records  of  the 
district  to  have  been  placed  there  properly,  in  the  absence  of 
other  proof.13 


iFrans  v.  Young,  (Neb.)  46  N.  W.  528. 
2 Brock  v.  Bruce,  58  Vt.  261. 
a  Sch.  Dist.  v.  Bennett,  53  Ark.  511. 
4Horneman  v.  Harlau,  (  Kas.)  28  P.  177. 
e  Riddle  v.  Sch.  Dist.,  15  Kas.  168. 


»  Sch.  Dist.  v.  Bennett,  52  Ark.  611. 
^State  v.  Horton,  19  Nev.  1«9. 

11  Culver  v.  Armstrong,  ( Mich.)  43  N.  W.  776. 

12  Mason  v.  Frac.  Sch.  Dist.,  34  Mich.  228. 
13Tozier  v.  Sch.  Dist.  No.  2,  39  Me.  556. 


150 


PUBLIC   SCHOOL   LAW. 


§  129.  Officer,  removal. — Where  defendant  in  quo  war- 
ranto  files  a  disclaimer  to  office,  the  case  is  not  to  be  dismissed, 
but  a  judgment  rendered  prohibiting  him  from  interfering  with 
the  office.1  Where  there  are  two  parties  claiming  to  be  the 
committee  of  school  district,  the  remedy  is  by  quo  warranto* 
In  Pa.  the  power  of  the  quarter  sessions  to  remove  school 
directors  from  office  is  limited  by  the  act  of  May  8,  1854,  §  9.3 
The  school  committee  of  a  town  cannot  remove  the  clerk  of  the 
board,  unless  for  cause,  and  after  due  notice,  and  opportunity 
is  given  him  to  defend  himself  ;*  but  the  clerk  may  waive  for- 
mal notice,  and  the  vote  removing  him  will  be  valid.*  The 
superintendent  of  Paris,  Ky.,  city  schools  may  be  removed  at 
any  time  by  the  board,  without  the  approval  of  county  superin- 
tendent, the  school  being  carried  on  by  special  statute.5  Pro- 
ceedings by  a  township  board  to  remove  a  director  cannot 
properly  be  taken  until  the  action  of  proper  authorities  by 
complaint  of  some  definite  violation  of  duty,  (Mich.  Comp.  L., 
§3695);  but  they  may  be  waived.8  The  willful  refusal  of  a 
school  director  to  sign  a  contract  made  with  a  teacher,  or  to 
accept  and  file  it,  or  draw  orders  for  the  teacher's  pay  while  it 
is  pending,  or  to  furnish  necessary  supplies,  may  be  considered 
in  proceedings  for  his  removal.6  The  township  board  is  exclu- 
sive judge  of  the  facts,  under  Mich.  Comp.  L.,  §  3695,  to  remove 
a  school  director,  and  its  proceedings  can  only  be  reviewed  by 
the  courts  on  questions  of  law.7  In  111.  supervisors  may  re- 
move superintendent  neglecting  duty  through  intoxication,  with- 
out giving  him  a  hearing.8  The  directors  having  exercised 
their  discretion  in  locating  the  schools,  there  was  no  authority 


i  Atty.  Gen.  v.  Johnson,  (N.  H.)  7  A.  381. 
»Hinckley  v.  Breen,  55  Conn.  119. 
•Heard  v.  Sch.  Dire.,  45  Pa.  St.  93. 
*Willard's  Appeals,  4  R.  L  595,  597. 
•Adams  v.  Thomas,  (Ky.)  12  S.  W.  940. 


«Geddes  v.  Thomastown,  46  Mich.  316. 
i  Hamtranck  Tp.  Bd.  v.  Holihan,  46  Mich.  127. 
8  People  v.  Mays,  17  111.  App.  361;  People  v. 
Maya,  117  BL  257. 


OFFICER,  TERM. 


for  the  court  to  remove  them,  under  act  Pa.  May  8,  1854,  ex- 
cept on  evidence  showing  want  of  good  faith  in  their  acts  ;x  and 
the  court  will  not  interfere  to  remove  school  directors,  under 
act  Pa.  May  8,  1854,  9,  for  failure  to  provide  a  "suitable  school- 
house"  (§23)  where  the  houses  provided  are  cheap,  unsightly, 
unfit  for  permanent  use,  and  hard  to  keep  in  repair,  but  not 
uncomfortable  or  unsafe  ;2  but  a  refusal  to  consider  a  request 
by  two  citizens,  made  for  themselves  and  on  behalf  of  their 
neighbors,  for  enlarged  school  accommodations,  in  a  case  where 
the  same  is  clearly  required,  is  cause  for  the  removal  of  the 
board  ;s  the  superintendent  of  common  schools  has  the  power 
of  removing  any  county  superintendent  for  neglect  of  duty,  in- 
competency,  or  immorality ;  but  there  must  be  first  a  charge, 
notice,  and  opportunity  of  defense.*  Where  township  board 
did  not  meet  to  agree  on  notice  to  remove  school  director,  the 
proceedings  for  removal  are  not  thereby  invalidated  in  Mich.5 
Where  directors  were  removed  for  not  appointing  teachers,  the 
failure  to  agree  as  to  the  salary  is  no  excuse.6 

§  131.  Officers,  tax. — The  curative  act  of  1886  cures  the 
irregularities  in  the  election  for  officers  and  for  taxing  under 
Ky.  act  1884,  "imposing  certain  duties  on  board  trustees  certain 
district."7  The  legality  of  the  existence  of  the  district  can  be 
tried  by  an  information  against  the  district  itself;  or  by  an 
action  of  trespass  against  the  members  of  the  committee  for  any 
compulsory  acts  under  its  authority ;  or  by  resisting  the  pay- 
ment of  taxes  laid  by  it,  but  not  by  quo  warranto  against  an 
officer.8 

§  132.   Officer,  term. — The  term  of  a  truant-officer,  appointed 


1  Price  v.  Barrett  Tp.  Sch.  Dirs.,  9  Pa.  Co.  Ct. 

R.  395. 

2  Ohio  Tp.  Sch.  Dire.,  9  Pa.  Co.  Ct.  R.  392. 
•ConnoquenesBing  Sch.  Dirs.,  9  Pa.  Co.  Ct. 

R.  425. 


4  Field  v.  Commonwealth,  32  Pa.  St.  478. 
6  Wenzel  v.  Dorr,  49  Mich.  25. 
'Appeal  Sch.  Dist.,  (Pa.)  15  A.  543. 
•  '  Ky.)  7  S.  W.  896. 


iffift! 


North,  42  Conn.  79. 


tolUTS 


152  PUBLIC   SCHOOL   LAW. 

under  Mass.  Gen.  Stat.,  ch.  42,  §  5,  expires  at  the  end  of  the 
municipal  year.1  When  a  school  district,  at  an  annual  meeting, 
has  appointed  one  to  act  as  prudential  committee,  it  cannot 
during  the  year  appoint  another  in  his  place,  or  add  more  to 
the  number  of  the  committee  ;2  school-district  officers,  elected 
at  annual  meeting  of  district,  will  hold  their  offices  until  suc- 
cessors are  elected,  at  another  annual  meeting.2  The  members 
of  the  board  of  education  of  Port  Huron,  Mich.,  hold  office  for 
specific  terms,  and  are  not  city  officers  removable  by  the  com- 
mon council.3  Miss.  Const.,  art.  8,  §  5,  limits  the  terms  of 
office  of  county  superintendents  of  education  to  two  years, 
and  makes  no  provision  for  their  holding  over  until  their  suc- 
cessors are  appointed  and  qualified ;  and  the  term  cannot  be 
extended  by  legislature  ;*  but  in  Yt.,  the  officers  of  a  school 
district  hold  their  office  until  their  successors  are  appointed.5 
Where  party  ineligible  is  elected  county  superintendent  there  is 
no  election  and  the  incumbent  holds  over,  in  Ky.;6  and  where 
a  school  trustee  has  been  appointed  to  fill  a  vacancy,  under 
Ind.  act  1875,  he  is  entitled  under  constitution  to  hold  office 
until  the  qualification  of  his  successor  ;7  the  successive  annual 
elections  for  a  school  trustee  should  be  held  at  the  first  regular 
meeting  of  the  council  in  June ;  but  a  valid  election  might  be 
had  subsequently  ;7  and  a  district  trustee  elected  under  §  39  of 
the  act  of  1849,  Ind.,  continues  in  office  until  a  successor  is 
elected  by  the  qualified  voters.8  The  Nev.  act  authorizing  trus- 
tees to  be  elected  and  one  to  hold  for  five  years  when  there  are 
five  trustees,  is  unconstitutional.9 

§  133.    Officer,  term. — Where  statute  required  division  of 


iHnsev.  Lowell,  10  Allen  (Mass.)  149. 

2  Chandler  v.  Bradish,  23  Vt.  416. 

a  People  v.  Port  Huron  Hd.  Ed.,  39  Mich.  635. 

4  Burnham  v.  Sumner,  50  Miss.  517. 

6  Walker  v.  Miner,  32  Vt.  769. 


« Howard  v.  Cornett,  (Ky.)  1  S.  W.  1. 
"  Sackett  v.  State,  74  Ind.  486. 
8  Stewart  v.  State,  4  Ind.  396. 
•State  v.  Harris,  19  Nev.  222. 


OFFICER,  TERM.  153 


school  committee  into  three  classes,  the  terms  of  which  were 
one,  two  and  three  years,  and  there  was  a  division  of  seven 
into  classes  of  three,  two  and  two,  and  where  the  term  of  two 
expired  and  another  retired,  and  the  council  elected  three,  the 
first  two  held  three  years  and  the  last  only  one.1  The  act  of 
Ya.,  in  regard  to  county  superintendents,  declaring  the  office 
vacant  July  1,  1886,  and  that  all  terms  of  four  years  should 
begin  on  that  day,  is  unconstitutional  and  void.8  In  ET.  Y., 
where  the  term  of  attendance  agents  expired,  they  cannot  claim 
that  their  successors  are  irregularly  elected.8  In  Ark.,  statute 
providing  that  director  elected  shall  within  ten  days  file  ac- 
ceptance of  office  with  predecessor,  subscribe  oath  of  office  and 
file  it  with  county  clerk,  and  enter  at  once  on  his  duties,  is  not 
affected  by  statute  requiring  officers  of  election  to  return  the 
result  to  county  clerk  ten  days  before  the  meeting  of  county 
court,  and  director's  term  begins  as  soon  as  he  has  qualified.4 
Where,  upon  the  establishment  of  a  new  county,  a  commis- 
sioner was  elected  a  year  before  the  assembly  elections,  and 
accepted  a  commission  "to  continue  in  force  until  the  next 
general  election,"  he  could  not  hold  office  after  his  successor, 
elected  at  such  general  election,  had  qualified;  under  Const. 
S.  C.,  a  school  commissioner  is  a  state  officer,  and  his  election  is 
governed  by  art.  14,  §  10.8  The  commissioner  was  a  candidate, 
and  did  not  contest  the  election  before  the  state  board  of  can- 
vassers ;  he  was  bound  by  its  decisions.5  Under  act  1887,  Ark., 
the  term  of  office  of  the  director  so  elected  begins  as  soon  as 
he  has  qualified  as  required  by  the  terms  of  the  act.6  The  su- 
perintendent of  public  instruction  in  Mo.  continues  in  office 


i  State  v.  Lane,  (R.  I.)  18  A.  1035. 

^Pendleton  v.  Miller,  82  Va.  390. 

•»  People  T.  Bd.  Ed.,  (N.  Y.)  1  N.  Y.  S.  743. 


<Sch.  Dist.  T.  Bennett,  52  Ark.  511. 
ePettigrew  v.  Bell,  (S.  G.)  12  S.  E.  1023. 
«Sch.  Dist.  v.  Bennett,  (Ark.)  13  S.  W.  132. 


154  PUBLIC   SCHOOL   LAW. 

until  his  successor  is  duly  appointed  and  qualified.1  The  board 
of  education  in  Storey  county,  Nev.,  did  not  continue  to  hold 
office  under  art.  17,  §  13,  of  the  constitution,  until  1867,  as  the 
legislature  abolished  said  board  prior  to  1867,2  and  the  presi- 
dent of  said  board  was  not  entitled  to  exercise  the  office  of 
superintendent  of  public  schools  after  said  board  was  abol- 
ished.2 By  the  act  of  June  18,  1853,  N.  Y.,  and  the  act  of 
April  12,  1852,  the  terms  of  "all  school-district  officers"  there- 
tofore elected  shall  expire  on  the  second  Tuesday  of  Oct.  1858.* 
The  provision  of  the  Ark.  act  1875,  as  to  time  of  appointing 
county  examiner,  is  directory  and  not  mandatory.* 

§  135.  Officer,  treasurer. — The  treasurer  of  city  board  of 
education  cannot  excuse  non-performance  of  duty  as  required 
by  the  records,  by  contradicting  the  records.6  A  settlement 
and  discharge  is  conclusive  unless  procured  by  fraud.6  The 
Ga.  school  law  of  1870  repeals  Code,  §  378,  making  the  ordi- 
naries the  treasurer  of  the  boards  of  education  of  their  respective 
counties.7 

§  136.  Officer,  vacancy. — The  failure  of  a  school-district 
officer,  in  Neb.,  to  file  a  written  acceptance  of  the  office  after 
the  election,  does  not  create  a  vacancy  in  the  office,  especially 
where  there  is  acquiescence  for  more  than  a  year.8  A  district 
prudential  committee  vacates  his  office  by  removal  from  town  ;9 
and  if  a  trustee  of  common  schools  in  the  city  and  county  of 
New  York  removes  from  the  county,  his  office  becomes  vacant  ;10 
and  where  the  clerk  of  a  school  district  in  Mass,  removed  from 
an  adjoining  district,  but  within  the  same  town,  and  another 


1  State  v.  Thompson,  38  Mo.  192. 

2  State  v.  Tilford,  1  Nev.  240. 

»BritrgB  v.  Outwater,  30  Barb.  (N.  Y.)  501. 

*Neal  v.  Burrows,  34  Ark.  491. 

•Port  Huron  Bd.  Ed.  v.  Runnels,  57  Mich.  46. 


•Parish  Bd.  v.  Packwood,  (La.)  7  So.  537. 
»  Clarke  v.  Levy,  45  Ga.  498. 
SFrans  v.  Young,  ( Neb.)  46  N.  W.  528. 
»  Giles  v.  Sch.  Dist.  31  N.  H.  (11  Post.)  304. 
M  Gildersleeve  v.  B.  Ed.,  17  Abb.  (N.  Y.)  Pr.201.. 


OFFICERS,  VACANCY. 


155 


was  chosen  in  his  stead,  but  not  sworn,  the  first  continued  com- 
petent to  act  as  clerk  j1  but  a  trustee's  office  is  not  vacated  by 
an  unaccepted  resignation.8  Vacancy  in  board  of  trustees  (N.  J. 
act  1854)  may  be  filled  by  inhabitants;  this  does  not  exclude 
other  modes  of  filling  the  same.3  A  resolution  of  a  special 
meeting,  appointing  a  trustee  in  the  place  of  one  who  had  been 
chosen  a  few  days  before,  stated  that  the  one  first  chosen  "had 
refused  to  serve,"  in  trespass  against  the  trustee  for  causing  a 
district  tax  to  be  collected ;  the  second  appointment  will  be 
presumed  valid.4  Where  the  annual  district  meeting  is  not 
held  before  Apr.  20th,  in  N.  EL,  the  offices  become  vacant  and 
the  selectmen  may  appoint.5  A  school  examiner  in  Mich, 
appointed  to  fill  a  vacancy  holds  only  for  the  unexpired  term  ;* 
and  failure  to  take  oath  of  office  by  city  school  trustees  in  Va.r 
in  certain  time,  vacates  the  office,  and  others  may  be  appointed.7 
The  power  of  removing  trustees  of  school  districts  was  vested 
in  school  trustee  electoral  board  in  Ya.,  in  1877.^  Failure  to 
elect  prudential  committee  does  not  create  a  vacancy,  but  those 
in  office  at  the  time  of  annual  meeting  hold  over.9 

§  137.  Officers,  vacancy. — Where  school  board  organized 
and  adjourned  and  there  being  no  quorum,  the  only  member 
present  adjourned  for  several  times;  where  the  minutes  did  not 
show  that  the  meeting  for  organization  adjourned  to  that  for 
business,  the  absence  of  the  members  from  two  consecutive 
meetings  did  not  vacate  their  office,  in  Pa.10  Where  a  school 
board  cannot  accomplish  a  permanent  organization  because  no 
one  of  the  members  can  obtain  a  majority  of  votes  for  president, 


.*  Williams  v.  Lunenbnrg,  21  Pick.  ( Maes.)  75. 
2Townsend  v.  Sch.  Trs.,  41  N.  J.  L.  312. 
3  State  v.  Patterson,  32  N.  J.  L.  177. 
*  Randall  v.  Smith,  1  Den.  (N.  Y.)  214. 
6Att'y  Gen.  v.  Burnham,  61  N.  H.  594. 


'People  v.  Stone,  (Mich.)  44  N.  W.  333. 
TChiidrey  v.  Rady,  77  Va.  518. 
SMcTeer  v.  Caldwell,  77  Va.  596. 
ORowell  v.  Sch.  Dist.,  ( Vt.)  10  A.  754. 
10  Genesee  Ind.  S.  D.v.  McDonald,98  Pa.St.444. 


156 


PUBLIC   SCHOOL   LAW. 


the  proper  court  is  justified  in  declaring  their  seats  vacant,  and 
appointing  others  in  their  stead.1  A  board  of  school  directors 
can  appoint  to  fill  a  vacancy  until  the  next  annual  election2  in 
Pa.,  and  by  acts  1838  and  1840,  the  remaining  school  directors 
have  the  power  to  declare  the  seat  of  the  director  vacant,  in  the 
county  of  Philadelphia,  as  in  others,  but  in  Penn  township  this 
power  and  duty  are  expressly  vested  in  the  remaining  directors, 
respectively,  of  each  of  its  election  districts  of  North  and  South 
Penn.  Under  the  school  law  of  1854,  directors'  meetings  are 
either  stated,  including  the  annual  meeting  when  fixed,  or  spe- 
cial, adjourned  meetings  to  take  place  in  either  case ;  but  the 
former  only  are  regular  meetings,  for  non-attendance  at  any 
two  of  which  in  succession,  except  in  case  of  sickness  or  absence, 
the  seat  of  a  director  may  be  declared  vacant  by  the  other  di- 
rectors.4 Where  a  board  of  directors,  at  an  adjourned  meeting 
{there  being  no  quorum  at  the  regular  meeting),  declared  the 
seat  of  one  of  their  number  vacant,  who  had  not  attended  a 
« special "  meeting  called  by  the  president,  or  the  last  regular 
or  adjourned  meeting ;  the  first  meeting  being  "  special "  was 
not  "regular,"  and  as  the  third  meeting  was  but  a  continuance 
of  the  second,  which,  though  styled  "regular,"  did  not  appear 
to  have  been  a  "  stated  "  meeting,  the  action  of  the  school  board 
in  declaring  the  seat  of  the  absent  member  vacant,  was  illegal, 
because  he  had  not  been  absent  at  two  regular  meetings  in  suc- 
cession.* The  prudential  committee  of  a  school  district  refusing 
to  do  a  particular  act  does  not  create  a  vacancy  in  the  office, 
but  creating  a  new  district,  including  him  within  its  limits,  va- 
cates the  office.6  The  officers  of  a  school  district  do  not  become 


JBouton  v.  Royce,  10  Phila.  (Pa.)  559. 
« Com.  v.Thomas,  10 Phila.  (Pa.)  600. 
'Feltonv. Commonwealth, 8 Watts &S.  (Pa.) 


*Zulich  v.  Bowman,  43  Pa.  St.  83. 
6  Stevens  v.  Kent,  26  Vt.  503. 


PAROCHIAL,    SECTARIAN,   RELIGIOUS,    ETC.  157 

vacant  in  Yt.  merely  by  the  failure  of  the  district  to  maintain 
a  school,  (Gen.  Stat,  ch.  22,  §  40,)  nor  until  the  selectmen  have 
duly  made  new  appointments.1 

§138.  Parochial  school;  sectarian  school;  religious, 
etc. — It  has  been  held  unconstitutional  to  use  the  school-money 
to  buy  a  state  history  for  each  district  ;2  and  an  act  which  at- 
tempts to  devote  a  part  of  the  school  fund  to  a  private  school 
is  unconstitutional.3  In  the  case  of  County  of  Cook  v.  Indus- 
trial /School,  where  girls  were  committed  to  Chicago  Industrial 
School  for  Girls,  and  the  bills  for  board,  tuition,  maintenance 
and  care  were  presented  against  the  county,  and  resisted  on  the 
ground  that  the  Chicago  Industrial  School  was  a  sectarian 
school,  the  opinion  by  Scott,  J.,  was:  "In  State  v.  Hallock,, 
16  Nev.  373,  it  was  held  that  the  Nevada  Orphan  Asylum  was. 
a  sectarian  institution,  and  that  the  payment  of  a  claim  made 
by  it  against  the  state  would  be  a  violation  of  the  state  consti- 
tution ; "  and,  "  It  is  recorded  in  the  national  constitution  that 
'Congress  shall  make  no  law  respecting  an  establishment  of 
religion."'  An  eminent  law-writer  says:  "Those  things  which 
are  not  lawful  under  any  of  the  American  constitutions  may  be 
stated  thus :  .  .  .  2d,  compulsory  support,  by  taxation  or 
otherwise,  of  religious  instruction ;  not  only  is  no  one  denomi- 
nation to  be  favored  at  the  expense  of  the  rest,  but  all  support 
of  religious  instruction  must  be  entirely  voluntary.  (Cooley- 
Const.  Lim.,  5th  ed.,  580.)"*  The  schools  kept  by  the  Koman 
Catholic  Orphan  Asylum  Society  of  the  city  of  Brooklyn  are 
not  "  common  schools  "  within  the  meaning  of  the  constitution.5 
An  act  of  legislature  constituting  as  a  district  a  private  school- 


i  Woodcock  v.  Bolster,  35  Vt.  632. 

^Collins  v.  Henderson,  11  Bush  (Ky.)  74. 

•Atkin  v.  Lamkin,  56  Mies.  764;  Gordon  v. 
Cornee,  47  N.  Y.  616;  State  v.  Springfield, 
6  Ind.  86;  Bd.  Ed.  v.  Brooklyn,  13  Barb. 
409;  People  v.  Allen,  42  N.  Y.  404;  Hul- 
bert  v.  Sparks,  9  Bush  (Ky.)  260. 


*  County  of  Cook  v.  Industrial  School,  125  111. 

540. 
« People  v.  Bd.  Ed.,  13  Barb.  (N.  Y.)  400. 


158 


PUBLIC   SCHOOL   LAW. 


liouse  and  place  of  worship  erected  with  money  bequeathed  for 
that  purpose,  and  constituting  trustees  with  power  of  taxation 
for  the  support  of  the  school,  is  unconstitutional  ;J  and  a  city 
orphan  asylum  for  poor  orphans  only  is  not  a  free  public  school 
of  the  state  ;a  and  public  money  cannot  be  subscribed  to  aid  a 
private  sectarian  college.3 

§139.  Parochial,  sectarian,  religious,  &c. — The  stat- 
utes in  relation  to  the  institution  and  patronage  of  a  public 
school  in  Frederick  county,  Md.,  were  intended  as  a  part  of  the 
general  public-school  system,  and  to  invest  that  school  with  all 
•the  rights  belonging  to  the  schools  previously  established  in 
•other  counties.*  In  Mo.,  children  under  six  years  of  age  are 
not  entitled  to  free  tuition  in  public  schools ;  the  constitution 
provides  public -school  system  for  scholars  between  six  and 
twenty  years  of  age.6  The  act  of  Ya.,  Dec.  1884,  giving 
"  Hall's  Free  School "  trustees,  funds  from  school  quota,  is  un- 
constitutional ;  this  school  is  not  part  of  free-school  system  ;6 
.and  under  Ohio  constitution,  the  laws  for  organizing  and  regu- 
lating public  schools  must  be  of  uniform  operation  throughout 
>the  state.7  The  constitution  of  all  the  states  in  some  way  pro- 
hibits the  use  of  the  common-school  fund  for  the  support  of 
:  sectarian  institutions.  State  Normal  of  N.  Y.  is  not  a  "  public 
.school"  so  as  to  enable  scholars  to  claim  free  scholarship  in 
Cornell  University.8  The  inmates  of  the  German  Protestant 
Orphan  Asylum  of  Cincinnati  are  not  children,  wards,  or  ap- 
prentices of  actual  residents  in  the  district  of  the  asylum,  and 
:are  not  entitled  to  the  public-school  privileges  of  that  district.' 
Statutes  of  Wis.,  authorizing  sending  specified  classes  of  chil- 


i  People  v.  McAdams,  82  111.  356. 
2/tt  re  Malone,  21  S.  C.  435. 
3  A.  T.  &  S.  F.  R.  R.  Co.  v.  Atchison,  47 Ks.  713. 
-  "'Thomas  v.  Visitors  Frederick  County  Sch., 
7  Gill.  &  J.  ( Md.)  369. 


6  Roach  v.  St.  Louis  Sch.  Bd.,  77  Mo.  484. 
«  Hall's  Free  S.  v.  Home,  80  Va.  470. 
*  State  v.  Powers,  38  Ohio  St.  54. 
8 People  v.  Crissey,  45  Hun  (N.  Y.)  19. 
•State  v.  Sch.  Dirs.,  10  Ohio  St.  448. 


PAROCHIAL,   SECTARIAN,  RELIGIOUS,  ETC.  159 

dren  to  public  industrial  schools,  do  not  involve  any  interference 
with  the  relation  of  parent  and  child,  nor  any  imprisonment 
that  may  not  be  imposed.1  The  school  law  providing  for  the 
education  of  every  individual  between  the  ages  of  five  and 
twenty-one  years,  is  not  unconstitutional.2 

§  140.  Parochial,  sectarian,  religious,  etc. — Where  the 
territorial  law  authorized  the  board  of  education  to  designate 
private  institution  where  instruction  should  be  given,  and  the 
tuition  paid  by  the  territory,  and  a  contract  was  made  accord- 
ingly, which  contract  required  three  months'  notice  to  cancel, 
it  was  held  that  the  constitution  of  the  state  subsequently 
adopted  prohibiting  apropriation  to  any  sectarian  institution, 
terminated  the  contract,  and  such  provision  did  not  contravene 
the  U.  S.  constitution  prohibiting  the  impairing  of  obligations 
of  contracts.3  A  public  institution  of  learning  would  be  one 
which  is  controlled  by  the  state  through  its  agents,  and  in  which 
the  state  would  have  a  paramount  interest  and  right  of  property, 
and  which  would  depend  upon  the  state  for  its  existence.4 
Although  the  Illinois  Industrial  University  at  Urbana  is  a  body 
corporate,  yet  the  state  appoints  its  trustees,  and  may  sell  and 
dispose  of  the  property  of  the  institution,  or  amend  or  repeal 
the  charter.5  Paying  rent  for  use  of  church  for  school  purposes 
is  not  contrary  to  111.  constitution.8  The  Ky.  act  of  1872, 
appropriating  common-school  funds  to  Y.  academy,  is  unconsti- 
tutional.7 "  Not  only  is  no  one  denomination  to  be  favored  at 
the  expense  of  the  rest,  but  all  support  of  religious  instruction 
must  be  entirely  voluntary ;  it  is  not  within  the  sphere  of  gov- 
ernment to  coerce  it;"8  except  in  N.  H.,  the  constitution  of 


1  Milwaukee  Industrial  Sch.  v.  Supervisors. 

40  Wis.  328. 

2  Commonwealth  v.  Hartman,  17  Pa.  St.  118. 

8  Synod  of  Dakota  v.  State,  ( S.  D. )  50  N.W.  632. 
*  State  v.  Graham,  25  La.  Ann.  440. 


6  Trustees  111.  Ind.  TJ.  v.  Champaign  Co..  76 
111.  184. 


.  Ed.  Bd.,  19  111.  App.  48. 
^Halbert  v.  Sparks,  9  Bush  (Ky.)  259. 
8  Cooley  Const.  Lim.,  576. 


160  PUBLIC   SCHOOL   LAW. 

which  permits  the  legislature  to  authorize  towns,  parishes,  bodies 
corporate,  or  religious  societies  within  the  state  to  make  adequate 
provisions  at  their  own  expense,  for  the  support  and  maintenance 
of  public  Protestant  teachers  of  piety,  religion  and  morality, 
but  not  to  tax  other  denominations  for  their  support. 

§  141.  Parochial,  sectarian,  religious,  etc. — In  the  case 
of  Comity  of  McLean  v.  Humphreys,  104  111.  (Free.)  378,  it 
was  decided  that  "  There  is  nothing  in  the  various  provisions  of 
the  act  of  May  28, 1879,  entitled  'An  act  to  aid  industrial  schools 
for  girls,'  which  authorizes  or  contemplates  the  organization  of 
these  schools  for  sectarian  purposes,  within  the  meaning  of  §  3,. 
art.  8,  of  the  constitution,  prohibiting  any  appropriation  or  pay 
from  any  public  fund,  or  anything  in  aid  of  any  church  or  sec- 
tarian purpose,  by  any  public  corporation  ;  but  on  the  contrary,, 
it  is  expressly  prohibited  in  the  last  section  of  the  act. 

"If,  notwithstanding  this  inhibition  in  the  act,  such  a  school 
should  be  prostituted  to  any  church  or  sectarian  purposes,  the 
law  affords  ample  means  for  a  speedy  correction  of  such  an 
abuse  of  the  act. 

"  Constitution  not  to  be  so  construed  as  to  deprive  the  legis- 
lature of  the  power  of  protecting  dependent  and  unfortunate  in- 
fants. It  is  the  unquestioned  right  and  imperative  duty  of 
every  enlightened  government,  in  its  character  of  parens patrice 
to  protect  and  provide  for  the  comfort  and  well-being  of  such  of 
its  citizens  as,  by  reason  of  infancy,  defective  understanding,  or 
other  misfortune  or  infirmity,  are  unable  to  take  care  of  them- 
selves, and  all  constitutional  limitations  must  be  so  construed 
and  understood  as  not  to  interfere  with  the  proper  and  legitimate 
exercise  of  this  important  governmental  function. 

"The  act  does  not  infringe  constitutional  guaranty  of  per- 


PAROCHIAL,  SECTARIAN,  RELIGIOUS,  ETC.  161 

sonal  liberty.  The  act  of  1879,  in  relation  to  industrial  schools 
for  dependent  infant  females,  is  not  obnoxious  to  the  objection 
that  it  infringes  upon  the  constitutional  guaranty  of  the  per- 
sonal liberty  of  the  citizen." 

§142.  Parochial,  sectarian,  religious,  etc. — "It  may 
be  said  that  §  3  of  article  8  of  the  111.  constitution  is  an  inhibi- 
tion upon  the  power  of  appellees  to  appropriate  any  public 
funds  for  the  support  of  a  public  school  or  any  school  under 
the  domination  or  control  of  any  church  or  sectarian  denomina- 
tion, and  that  §  3  of  the  Bill  of  Rights  provides  that  '  the  free 
exercise  and  enjoyment  of  religious  profession  and  worship 
without  discrimination  shall  forever  be  guaranteed,'  etc.  In- 
deed, these  sections  are  cited  in  appellant's  brief,  but  there  is 
no  question  of  construction  of  the  constitutional  provisions 
raised,  or  any  necessity  for  an  interpretation  apparent."  (Mil- 
lard  v.  Board,  116  111.  23.) 

§  143.  Parochial,  sectarian,  religious,  etc. — In  the  case 
of  Milwaukee  Industrial  School  v.  Supervisors  of  Milwaukee 
County,  40  Wis.  328,  it  was  decided  that  "The  power  con- 
ferred in  terms  by  §  5,  ch.  325  of  1875,  upon  certain  officers, 
for  the  commitment  of  minors  to  industrial  schools,  is  judicial, 
and  cannot  be  exercised  by  mayors  of  cities,  (3  Wis.  805); 
and  probably  not  by  judges  of  courts  of  record  at  chambers, 
(39  Wis.,  35);  but  any  defect  of  jurisdiction  in  these  will  not 
affect  the  authority  of  courts  under  the  act.  .  .  . 

"The  statute  (which  goes  on  the  total  failure  of  the  parent 
to  provide  for  the  child)  is  not  invalid  on  the  ground  that  it 
invades  any  natural  rights  of  parent  and  child. 

"The  commitment  of  the  child  to  an  industrial  school,  as  au- 
thorized by  the  statute,  is  not  an  imprisonment.  .  .  . 

"In  the  second  place,  the  statute,  certainly  so  far  as  it  is  in- 
—n 


162  PUBLIC   SCHOOL   LAW. 

volved  here,  does  not  go  on  failure  in  the  measure  of  support 
or  education  by  the  parent,  on  some  nice  fault-finding  with  the 
course  of  the  parent  with  the  child,  as  the  court  appeared  to 
think  that  the  Illinois  statute  did,  in  People  v.  Turner,  55  111. 
280.  It  goes  on  the  total  failure  of  the  parent  to  provide  for 
the  child.  And  it  is  difficult  to  comprehend  the  right  of  a  parent 
to  complain,  that  the  discharge  by  the  state  of  his  own  duty  to 
his  child,  which  he  has  wholly  failed  to  perform,  is  an  imprison- 
ment of  the  child  as  against  his  parental  right  in  it.  ... 

"  We  cannot  think  that  it  was  intended  to  foreclose  the  right 
of  a  parent,  when  competent,  to  resume  the  custody  and  care 
of  his  child.  In  this  respect  there  is  a  significant  difference 
between  it  and  the  statute  before  the  court  in  People  v.  Turner. 
That  statute  provided  for  process  against  the  parent  or  guardian 
of  the  child,  making  them  parties  to  the  proceeding,  and  appar- 
ently bound  by  it.  The  statute  before  us  carefully  avoids  that 
difficulty,  and  operates,  so  to  speak,  upon  the  child  in  personam, 
without  citing  the  parent  or  guardian,  without  any  color  of  in- 
tent to  bind  the  parent  or  guardian  by  the  proceeding  or  by 
the  commitment.  It  appears  to  us  quite  obvious,  upon  familiar 
principles,  that  the  parent  or  guardian  is  not  precluded  by  the 
commitment  from  asserting  any  right  to  the  custody  and  care 
of  the  child  which  he  may  be  afterwards  able  to  establish. 
When  a  parent  or  other  proper  guardian  should  be  able  to 
show  that  the  disability  or  default  on  which  the  child's  commit- 
ment proceeded  was  accidental  or  temporary,  and  no  longer 
exists,  and  that  he  is,  in  the  language  of  §  5,  ch.  112,  E.  S.,  not 
otherwise  unsuitable  for  the  custody  of  the  child,  his  right  to 
the  custody  should  prevail  over  the  commitment  to  which  he 
was  not  a  party.  In  such  a  case,  if  the  officers  of  school  should 
refuse  to  surrender  a  child,  no  court  would  hesitate  to  restore 


PAROCHIAL,  SECTARIAN,  RELIGIOUS,  ETC.  163 

the  child  to  the  care  of  the  parent  or  guardian.  The  commit- 
ment during  minority  binds  the  child  only,  not  the  parent  or 
guardian  when  competent  to  fulfill  toward  the  child  the  duties 
assumed  by  the  state.  It  is  conclusive  as  between  the  school 
and  the  child,  but  not  as  between  the  school  and  the  parent  or 
guardian.  The  statute  is  a  humane  one,  and  should  not  be 
bent  to  a  construction  inconsistent  with  one  of  the  dearest 
rights  of  humanity.  It  is  our  duty  to  give  it  a  construction,  if 
we  can,  to  give  it  effect ;  and  we  find  no  difficulty  in  giving  it 
this  construction,  which  seems  to  us  to  have  been  in  the  mind 
of  the  legislature  when  it  was  framed.  .  .  . 

"The  case  of  People  v.  Turner  appears  to  turn  on  the  ques- 
tion of  compulsory  education  —  a  very  different  question  from 
that  here.  We  are  not  prepared  to  say  that  we  might  not  de- 
cide a  similar  case,  under  a  similar  statute,  in  the  same  way." 

§  14:4:.  Parochial,  sectarian,  religious,  etc. — In  Millard 
v.  The  Board  of  Education,  121  111.  297,  it  was  decided  that 
"  Kenting  building  for  school  purposes,  as,  a  church  building, 
when  it  becomes  necessary  for  a  board  of  education  to  procure 
a  building  in  which  to  conduct  a  public  school :  They  are  au- 
thorized by  law  to  lease  a  suitable  building  for  that  purpose, 
and  it  matters  not  that  such  building  had  been  used  for  a  church 
by  some  religious  body.  Procuring  a  building  without  a  vote 
of  the  people :  Where  a  proposition  to  raise  money  to  build  a 
school-house  at  a  site  selected  is  defeated  by  a  vote  of  the  peo- 
ple, the  board  of  education  or  directors,  being  required  to  pro- 
vide a  school  for  at  least  six  months  in  each  year,  may  lawfully 
rent  any  suitable  building  or  room  in  which  such  school  may 
be  kept,  without  any  vote  for  that  purpose.  The  free  schools 
of  this  state  are  not  established  to  aid  any  sectarian  denomina- 
tion, or  assist  in  disseminating  any  sectarian  doctrine,  and  no 


164  PUBLIC   SCHOOL  LAW. 

board  of  education  or  school  directors  have  any  authority  to 
use  the  public  funds  for  any  such  purpose.  The  statute  has  not 
prescribed  any  religious  belitef  as  a  qualification  of  a  teacher  in 
the  public  schools,  and  therefore  the  school  authorities  may 
select  a  teacher  who  belongs  to  any  church  or  to  no  church,  as 
they  may  think  best.  A  bill  to  enjoin  a  board  of  education 
from  the  use  of  school  funds  for  sectarian  purposes,  alleged  that 
the  children  of  Catholic  parents,  and  the  teachers,  who  were 
Catholics,  were  required  to  attend  at  a  Catholic  church,  the  base- 
ment of  which  was  used  for  the  school,  at  eight  o'clock  in  the 
morning  on  school-days,  and  hear  mass  read  by  the  priest,  and 
then  repair  to  the  school-room  and  engage  in  the  study  of  the 
church  catechism  for  half  an  hour  before  the  opening  of  the 
school,  and  at  the  close  of  the  school  at  noon  the  'Angelus' 
prayer  was  read  by  the  teachers  and  pupils,  but  failed  to  show 
that  the  board  were  in  any  manner  connected  with  such  exer- 
cises and  requirements :  Held,  That  the  bill  did  not  show  any 
ground  of  equitable  relief,  it  not  appearing  that  complainant 
had  any  children  who  were  required,  against  his  wishes,  to  at- 
tend or  receive  any  religious  instruction." 

§  145.  Parochial,  sectarian,  religious,  etc. — In  the  case 
of  State  v.  Dist.  JBd.,  76  Wis.  177,  it  was  decided :  "In  a  peti- 
tion by  residents  and  tax-payers  of  a  city  for  a  writ  of  man- 
damus to  compel  the  discontinuance  of  the  practice  of  reading 
the  Bible  in  the  public  schools  therein,  averments  that  the  resi- 
dents of  said  city,  who  are  taxed  for  the  support  of  said  schools, 
are  equally  entitled  to  the  benefits  thereof,  by  having  their 
children  instructed  therein  according  to  law,  and  that  the  read- 
ing complained  of  is  contrary  to  the  rights  of  conscience,  and  in 
violation  of  law,  and  is  sectarian  instruction  and  in  violation  of 
§  3,  art.  10,  Const.,  are  held  sufficiently  broad  to  cover  any 


PAROCHIAL,  SECTARIAN.   RELIGIOUS,  ETC.  165 

valid  objection  which  may  be  made  to  such  reading.  Aver- 
ments in  the  return  to  the  alternative  writ  that  the  reading  of 
the  Bible  in  schools  is  not  sectarian  instruction,  and  that  the 
school  board  has  a  lawful  right  to  permit,  but  none  to  prevent, 
such  reading, —  being  mere  legal  conclusions,  are  not  admitted 
by  a  demurrer.  Nor  does  the  demurrer  admit  an  averment  in 
such  return  that  there  is  no  material  difference  between  the 
King  James  version  of  the  Bible,  used  in  the  schools,  and  the 
Douay  version, —  such  averment  being  against  common  knowl- 
edge, and  therefor  not  well  pleaded.  The  courts  will  take 
judicial  notice  of  the  contents  of  the  Bible,  that  the  religious 
world  is  divided  into  numerous  sects,  and  of  the  general  doc- 
trines maintained  by  each  sect.  The  whole  Bible,  without  ex- 
ception, having  been  designated  as  a  text-book  for  use  in  a 
school,  and  it  being  claimed  by  the  school  board  that  the  whole 
contents  thereof  may  lawfully  be  read  in  such  school  if  the 
teacher  so  elect,  the  Bible  will  be  regarded  as  a  whole  in  de- 
termining whether  such  reading  is  sectarian  instruction ;  and  it 
is  immaterial  that  the  only  portions  thereof  thus  far  read  in 
such  school  are  not  sectarian.  «(The  use  of  any  version  of  the 
Bible  as  a  text-book  in  the  public  schools,  and  the  stated  reading 
thereof  in  such  schools  by  the  teachers,  without  restriction, 
though  unaccompanied  by  any  comment,  has  'a  tendency  to 
inculcate  sectarian  ideas,'  within  the  meaning  of  §  3,  ch.  251, 
Laws  of  1883,  and  is  'sectarian  instruction,'  within  the  meaning 
of  §  3,  art.  10,  Const\But  text-books  founded  upon  the  funda- 
mental teachings  of  the  Bible,  or  which  contain  extracts  there- 
from, and  such  portions  of  the  Bible  as  are  not  sectarian,  may 
be  used  in  the  secular  instruction  of  the  pupils  and  to  inculcate 
good  morals. /The  fact  that  the  children  of  the  petitioners  are 


166  PUBLIC   SCHOOL   LAW. 

at  liberty  to  withdraw  from  the  school-room  during  the  reading 
of  the  Bible  does  not  remove  the  ground  of  complaint.S  The 
constitutional  prohibition  of  sectarian  instruction  being  unam- 
biguous, the  rules  as  to  interpretation  in  the  light  of  surrounding 
circumstances  when  it  was  framed  and  adopted,  and  as  to  the 
authority  of  contemporaneous  exposition,  are  not  controlling. 
Considered  in  the  light  of  prior  and  contemporaneous  history, 
the  provisions  of  our  constitution  herein  cited  were  manifestly 
intended  to  prohibit  practices  then  permitted  by  other  constitu- 
tions. The  stated  reading  of  the  Bible  as  a  text-book  in  the 
public  schools  may  be  ; worship,'  and  the  school-house  thereby 
become,  for  the  time  being,  a  'place  of  worship,'  within  the 
meaning  of  §  18,  art.  1,  Const.;  and  to  such  use  of  the  school- 
house  the  tax-payers,  who  are  compelled  to  aid  in  its  erection 
and  in  the  maintenance  of  the  school,  have  a  legal  right  to 
object.  Children  of  poor  parents,  who  are  by  law  practically 
obliged  to  attend  the  public  schools,  would,  if  such  reading 
were  permitted,  be  compelled  to  attend  a  place  of  worship,  con- 
trary to  said  §  18.  Such  reading  being  religious  instruction, 
the  money  drawn  from  the  state  treasury  for  the  support  of  a 
school  in  which  the  Bible  is  so  read,  is  for  the  benefit  of  a 
'religious  seminary,'  within  the  meaning  of  said  section.  By 
the  adoption  of  the  state  constitution  and  the  admission  of  the 
state  into  the  Union,  the  third  of  the  articles  of  compact  in  the 
ordinance  of  1787  ceased  to  be  longer  in  force." 

§  146.  Parochial,  sectarian,  religious,  etc. — In  the  case 
of  County  of  Coolc  v.  Industrial  School,  125  111.  540,  it  was  de- 
cided that :  "A  school  is  sectarian,  and  comes  within  constitu- 
tional provision  '  that  public  funds  shall  not  be  paid  out  in  aid 
of  any  sectarian  purpose,  or  in  aid  of  any  school,  etc.,  controlled 


PAROCHIAL,  SECTARIAN,  RELIGIOUS,  ETC.  167 

by  any  church,'  where  such  school  is  a  corporation  organized 
as  an  industrial  school  for  girls,  but  does  not  lease  or  own  any 
building,  although  its  charter  contemplates  that  it  shall  have  a 
situs,  nor  otherwise  comply  with  the  provisions  of  its  act  of  in- 
corporation, but  places  all  girls  nominally  committed  to  it  under 
the  sole  charge,  care,  and  control  of  two  institutions  controlled 
by  a  church,  where  they  are  taught,  maintained  and  clothed  by 
them  alone,  and  in  which  institutions  the  inmates,  although  not 
obliged  to  receive  instructions  in  the  Romish  faith,  are  yet 
taught  no  other  faith  or  creed ;  and  in  such  case  a  suit  to  re- 
cover for  tuition  and  clothing  furnished  girls  so  placed  cannot 
be  maintained  against  the  county. 

"To  show  that  a  school  is  controlled  by  a  church,  evidence 
is  admissible  that  a  judge  of  the  superior  court  went  to  the  place 
where  an  industrial  school  was  alleged  to  be  carried  on,  and 
was  refused  admittance  unless  he  should  first  obtain  a  permit 
from  a  bishop  or  member  of  the  Romish  church,  it  appearing 
that  such  judge  was  authorized  to  commit  girls  to  an  industrial 
school,  and  that  books  containing  copies  of  the  warrants  of 
commitments  were  required  to  be  kept  therein. 

"If  an  industrial  school  that  has  availed  itself  of  the  provi- 
sions of  the  statute  of  111.  providing  for  the  payment  of  moneys 
to  such  schools  is  guilty  of  the  misuse  or  non-use  of  its  powers, 
and  brings  suit  against  a  county  upon  a  contract  which  the  lat- 
ter can  lawfully  make,  perhaps  a  defense  cannot  be  maintained 
solely  upon  the  ground  that  the  school  is  violating  its  charter ; 
the  proper  proceeding  to  test  that  question  may  be  quo  war- 
ranto.  But  if  the  contract  sued  on  is  a  contract  to  pay  money 
out  of  the  public  funds  in  aid  of  a  sectarian  purpose,  it  is  abso- 
lutely void  under  the  constitution. 


168  PUBLIC   SCHOOL   LAW. 

"Constitution  controls  in  preference  to  statute  where  .the 
statute  directs  a  county  board  to  pay  money  to  an  industrial 
school,  and  the  constitution,  in  a  self-executing  provision, 
directs  the  county  board  not  to  pay  money  to  such  school  when 
controlled  by  a  church. 

"Appeal  lies  to  supreme  court  where  validity  of  a  statute  or 
construction  of  the  constitution  is  involved ;  and  motion  to  dis- 
miss appeal  for  want  of  jurisdiction  will  be  overruled  where 
such  question  of  proper  construction  is  directly  raised  on  face 
of  record. 

"The  constitution  of  111.  declares  against  the  use  of  public 
funds  to  aid  sectarian  schools,  independently  of  the  question 
whether  there  is  or  is  not  a  consideration  furnished  in  return 
for  the  funds  so  used. 

"In  State  v.  Hallock,  16  Nev.  373,  it  was  held  that  the  Ne- 
vada Orphan  Asylum  was  a  sectarian  institution,  and  that  the 
payment  of  a  claim  made  by  it  against  the  state  would  be  a 
violation  of  the  following  provision  in  the  state  constitution: 
'No  public  funds  of  any  kind  or  character  whatever,  state, 
county,  or  municipal,  shall  be  used  for  sectarian  purposes.' 

"In  this  connection  it  may  be  proper  to  notice  one  of  the 
errors  assigned  on  the  ground  of  the  exclusion  of  evidence. 
Defendant,  for  the  purpose  of  showing  that  the  Chicago  Indus- 
trial School  itself  was  controlled  by  the  Catholic  church,  offered 
to  prove  that  one  of  the  judges  of  the  superior  court  of  Cook 
county  went  to  the  House  of  the  Good  Shepherd,  and  was  re- 
fused admittance,  and  was  told  that  'if  he  wished  to  be  admit- 
ted he  must  get  a  permit  from  the  Koman  Catholic  bishop,  or 
some  gentleman  member  of  the  Catholic  church  in  good  stand- 
ing.' 


PAROCHIAL,  SECTARIAN,  RELIGIOUS,  ETC.  169 

"The  doctrine  here  contended  for  is  an  exceedingly  danger- 
ous one.  In  county  of  McLean  v.  Humphreys,  104  111.  378,  it 
is  intimated  by  this  court  that  the  state  is  under  obligations  to 
protect  and  educate  such  classes  of  female  infants  as  were  de- 
clared to  be  dependent  girls  by  §  3  of  the  act  of  May  28,  1879, 
:as  that  section  stood  before  it  was  amended  on  June  26,  1885. 
Under  this  view,  the  industrial  schools  which  teach  and  care  for 
such  girls  are  performing,  as  substitutes  for  the  state,  a  duty 
which  the  state  itself  is  bound  to  perform.  If  they  are  entitled 
to  be  paid  out  of  the  public  funds,  even  though  they  are  under 
the  control  of  sectarian  denominations,  simply  because  they  re- 
lieve the  state  of  a  burden  which  it  would  otherwise  be  itself 
required  to  bear,  then  there  is  nothing  to  prevent  all  public 
education  from  becoming  subjected,  by  hasty  and  unwise  legis- 
lation, to  sectarian  influences.  By  §  1  of  article  8  of  the  con- 
stitution it  is  made  the  duty  of  the  state  to  provide  a  thorough 
-and  efficient  system  of  free  schools.  If  statutes  are  passed, 
under  which  the  management  of  these  schools  shall  get  into  the 
.hands  of  sectarian  institutions,  then,  under  the  theory  con- 
tended for,  the  prohibition  of  the  constitution  will  be  powerless 
to  prevent  the  money  of  the  tax-payers  from  being  used  to  sup- 
port such  institutions,  inasmuch  as  they  will  render  a  service  to 
the  state  by  performing  for  it  its  duty  of  educating  the  children 
of  the  people.  It  is  an  untenable  position,  that  public  funds 
may  be  paid  out  to  help  support  sectarian  schools,  provided 
only  such  schools  shall  render  a  quid  pro  quo  for  the  payment 
made  to  them.  The  constitution  declares  against  the  use  of 
public  funds  to  aid  sectarian  schools,  independently  of  the 
•question  whether  there  is  or  is  not  a  consideration  furnished  in 
j-eturn  for  the  funds  so  used. 


170  PUBLIC   SCHOOL   LAW. 

"  There  is  nothing  in  the  doctrine  here  announced  which  con- 
flicts with  the  case  of  Millard  v.  Board  of  Education,  121  111. 
297.  There  the  proceeding  was  by  an  individual  tax-payer 
against  a  board  of  education,  and  a  majority  of  the  court  sus- 
tained the  act  of  the  board,  which  had  no  school-house,  in 
temporarily  leasing  the  basement  of  a  Catholic  church,  for  the 
purpose  of  holding  one  of  the  public  schools  therein.  But  the 
board  did  not  part  with  the  control  of  the  school.  The  scholars, 
were  taught  by  teachers  whom  the  board  appointed,  and  under 
a  system  of  instruction  which  the  board  prescribed. 

"Nor, do  the  reasons  here  given  for  sustaining  the  jurisdic- 
tion of  the  court  in  this  case  conflict  with  the  other  case  of 
Millar  d  v.  Board  of  Education,  116  111.  23.  There  the  opinion 
expressly  states  that  no  question  of  the  validity  of  a  statute  or 
of  the  construction  of  the  constitution  was  raised.  But  here 
the  question  of  the  proper  construction  of  a  constitutional  pro- 
vision is  directly  raised  upon  the  face  of  the  record." 

§  147.  Parochial,  sectarian,  religious,  etc. — In  the  cel- 
ebrated case  of  Cincinnati  Board  of  Education  v.  Minor,  23 
Ohio  St.  211,  which  has  been  looked  upon  as  the  leading  case 
prohibiting  the  Bible  from  schools  on  the  ground  of  being  sec- 
tarian in  its  tendency,  the  chief  question  presented,  tried  and 
decided  in  that  case  was :  The  constitution  of  Ohio  declared 
that  religion,  morality  and  knowledge  were  essential  to  good 
government,  and  required  the  legislature  to  encourage  schools 
for  that  reason;  and  it  was  insisted  that  this  clause  of  the 
constitution  required  to  that  extent  religious  instruction.  The 
court  held  that  it  authorized  the  legislature  to  do  certain  things, 
and  the  legislature  never  acted  under  said  clause ;  and  that  the 
board  of  education  having  excluded  the  Bible,  the  court  had  no- 


PUPIL,  ADMISSION.  171 


power  to  interfere  with  the  powers  exercised  by  the  board  of 
education ;  or,  as  they  decide  it  in  the  syllabus  of  the  case : 

"The  constitution  of  the  state  does  not  enjoin  or  require  re- 
ligious instruction  or  the  reading  of  religious  books  in  the  pub- 
lic schools  of  the  state. 

"The  legislature  having  placed  the  management  of  the  public 
schools  under  the  exclusive  control  of  directors,  trustees,  and 
boards  of  education,  the  courts  have  no  rightful  authority  to 
interfere  by  directing  what  instruction  shall  be  given  or  what 
books  shall  be  read  therein." 

§  148.  Parochial  school — religious — Bible. — The  school 
committee  of  a  town  have  the  legal  power  to  pass  a  rule  requir- 
ing a  school  to  be  opened  by  reading  from  the  Bible.1  Where 
the  legislature  has  placed  the  management  of  the  public  schools 
under  the  exclusive  control  of  directors,  trustees,  and  boards  of 
education,  the  judicial  power  will  not  direct  what  instruction, 
shall  be  given,  or  what  books  shall  be  read  therein.2  Permit- 
ting some  pupils  to  withdraw  during  reading  of  Bible  is  not 
uniformity  of  treatment.  Reading  of  the  Bible  is  held  in  this 
case  to  be  sectarian  instruction,  and  against  the  constitution  of 
Wis.  Reading  of  the  Bible  is  also  held  in  same  case  to  be 
religious  instruction  ;3  but  in  Me.  a  rule  requiring  the  reading 
of  a  particular  version  was  held  to  be  legal  ;*  and  an  expulsion 
from  school  for  refusing  to  conform  to  rule  in  regard  to  reading 
of  Bible  was  sustained.5 

§  149.  Pupil,  admission. — The  decision  of  state  superin- 
tendent that  a  child  is  entitled  to  attend  in  a  certain  district  will 
be  upheld  where  he  is  living  there  and  working  for  his  board y 

1  Speller  v.  Wolburn,  12  Allen  (Mass.)  127.        I    *Donahoe  v.  Richards,  38  Me.  376. 

2  Bd.  Ed.  Cincinnati  v.  Minor,  23  Ohio  St.  211.        6McCormick  v.  Burt,  95  111.  266. 
'State  v.  Dist.  Bd.,  ( Wie.)  44  N.  W.  967. 


172  PUBLIC   SCHOOL   LAW. 

-and  did  not  come  there  to  attend  school,  and  his  mother  teaches 
in  another  city,  is  not  able  to  support  him,  and  has  no  home.1 
To  obtain  admission  when  pupil  is  wrongfully  excluded  by  princi- 
pal in  N.  Y.  city  ward  school,  he  must  appeal  to  board  trustees 
of  ward,  then  to  board  education ;  and  where  he  had  graduated 
from  primary  and  there  was  no  room  to  seat  him  he  cannot 
compel  readmission.2  The  board  of  education  in  111.  can  refuse 
to  admit  pupils  in  a  sub-district,  boarding  there  when  the  schools 
-there  are  crowded  and  there  are  schools  in  same  district  in  an- 
other sub-district  where  the  parents  of  such  pupil  reside.3  The 
power  of  directors  to  enlarge  building,  and  the  fact  that  edu- 
cation is  compulsory,  does  not  prevent  directors  temporarily 
"excluding  for  want  of  room.*  Legal  school  age  means  scholars 
under  twenty-one  years,  in  Mass.  ;6  and  the  Miss,  act  1866,  as  to 
-admission  of  outside  pupils  on  payment  of  tuition  means  such 
proportion  of  all  tuition  in  that  school  as  number  of  outside 
.scholars  bears  to  whole  number.8 

§  150.  Pupil,  admission. — In  the  case  of  State  v.  White, 
82  Ind.  278,  it  was  held:  "The  trustees  and  faculty  of  a  public 
university  may  not  refuse  admission  or  exclude  students  be- 
cause they  are  members  of  a  Greek -letter  fraternity  or  other 
•secret  college  society.  .  .  .  This  right  of  admission  may 
not  be  enforced  when  there  is  not  sufficient  room  in  the  univer- 
sity, and  may  be  postponed  until  the  applicant  has  made  some 
proficiency  in  merely  preliminary  studies ;  but  it  is  a  right 
which  the  trustees  are  not  authorized  to  materially  abridge, 
and  which  they  cannot  as  an  abstract  proposition  rightfully 
deny.  (Cory  v.  Carter,  48  Ind.  327;  State  v.  Duffy,  1  Nev.  342  ; 


i  State  v.  Thayer,  74  Wis.  48. 

•*  People  v.  Bd.  Ed.,  (N.  Y.)  4  N.  T.  S.  103. 

•*  People  v.  Bd.  Ed.,  26  111.  App.  476. 


*  People  v.  McFall,  26  111.  App.  319. 
*Needham  v.  Wellesley,  139  Mass.  372. 

•  State  v.  Hamilton,  (Miss.)  10  So.  57. 


PUPIL'S  DISCHAPtGE,  DISMISSAL  AND  EXPULSION. 


Chase  v.  Stephenson,  71  111.  383  ;  School  Trustees  v.  People,  87 
id.  303  ;  Eulison  v.  Post,  79  111.  567;  People  v.  Board,  etc.,  18 
Mich.  400  ;  Foltz  v.  Hoge,  54  Cal.  28  ;  Ward  v.  Flood,  48  id. 
36.)  .  .  .  Every  student,  upon  his  admission  to  an  institu- 
tion of  learning,  impliedly  promises  to  submit  and  be  governed 
by  all  the  necessary  and  proper  rules  and  regulations  which 
have  been  or  may  thereafter  be  adopted  for  the  government  of 
the  institution;  and  the  exaction  of  any  pledge  or  condition 
which  requires  him  to  promise  more  than  that  operates  as  a 
practical  abridgment  of  his  right  of  admission,  and  involves  the 
exercise  of  a  power  greater  than  has  been  conferred  upon  either 
trustees  or  the  faculty  of  Purdue  University.  .  .  .  Our 
conclusion  is,  that  so  much  of  regulation  No.  3,  adopted  by  the- 
faculty,  as  may  be  construed  to  impose  disabilities  on  persons 
already  members  of  the  Greek  fraternities,  and  as  requires  a 
written  pledge  as  a  condition  of  admission,  is  both  ultra  vires 
and  palpably  unreasonable,  and  hence  inoperative  and  void, 
and  that  the  pledge  tendered  to  Hawley  was  one  which  the- 
faculty  had  no  legal  right  to  demand  as  a  condition  of  his  ad- 
mission." 

§151.  Pupil,  Chinese.  —  It  was  decided  in  Cal.,  that  a, 
Chinese  child  could  not  be  excluded,  and  in  1885  statute  was 
passed  allowing  the  establishment  of  separate  schools.1 

§  152.  Pupil's  discharge,  dismissal,  and  expulsion.  — 
School  authorities  cannot  expel  pupil  for  attending  a  social 
party  contrary  to  rules  of  school  ;2  but  in  an  action  for  damages 
for  expelling  under  such  rule,  as  there  was  no  malice  on  the 
part  of  the  directors,  they  were  not  liable  in  damages  ;s  and  a 


1  Tape  v.  Hnrley,  66  Cal.  473. 

2  State  v.  Osborne,  24  Mo.  App.  309;  Dritt  v. 

Snodgraes,  66  Mo.  286;  State  v.  Osborne, 
32  Mo.  App.  536. 


'Dritt  v.  Snodgrass,  66  Mo.  286. 


174  PUBLIC   SCHOOL   LAW. 

pupil  cannot  be  discharged  for  failing  to  comply  with  regula- 
tion that  each  scholar  shall  bring  into  the  school-room  a  stick 
of  wood  for  the  fire  ;*  but  when  pupil  is  dismissed  by  teacher 
without  sanction  of  committee  or  without  authority,  he  cannot 
maintain  an  action  against  the  city  without  first  appealing  to 
the  school  authorities  ;2  and  where  directors  make  a  rule  in  good 
faith  that  pupil  absent  certain  time  without  excuse  shall  be  ex- 
pelled from  school,  they  are  not  liable  in  damages  in  the  ab- 
rsence  of  malice.3  So  it  was  held  that  public  officers  who  err 
in  the  discharge  of  their  duties,  are  not  by  reason  thereof  liable 
m  damages.*  In  Iowa,  boards  of  school  directors  may  provide 
by-rules,  that  pupils  may  be  suspended  from  the  schools  in  case 
they  shall  be  absent  or  tardy,  except  for  sickness  or  other  un- 
avoidable cause,  »a  certain  number  of  times  within  ax  fixed 
period  ;5  and  a  school  board  has  power  to  make  a  rule  suspend- 
ing any  pupil  absent,  without  satisfactory  excuse,  six  half-days 
in  four  consecutive  weeks.*  The  general  school  committee  of  a 
town  may  exclude  from  school  a  pupil  of  immoral  character.7 
Where  statute  authorizes  board  to  suspend  or  expel  pupils 
guilty  of  gross  misdemeanor  or  persistent  disobedience,  this 
does  not  justify  suspending  for  accidents  or  negligence.8  A 
rule,  prescribed  by  a  board  of  education,  that  a  pupil  failing  to 
come  prepared  with  a  required  exercise,  or  with  a  reasonable 
excuse,  shall  be  suspended,  is  a  reasonable  rule,  such  as  the 
board  has  authority  to  adopt,  and  the  teacher  to  enforce.9  A 
;  requirement  by  a  teacher  of  a  district  school  that  the  scholars 
in  grammar  shall  write  English  composition,  and  a  refusal  to 
comply  with,  in  the  absence  of  a  request  from  the  parents  that 


i  State  v.  Fond  du  Lac  E.  B.,  63  Wis.  234. 
*  Davis  v.  Boston,  133  Mass.  103. 
»  Churchill  v.  Fewkes,  13  111.  App.  520. 
*Donahoe  v.  Richards,  38  Me.  376. 
'Burdick  T.  Babcock,  31  Iowa,  562. 


«King  v.  Jefferson  Sch.  Bd.,  71  Mo.  628. 

7 Sherman  v.  Charlestown,  8  Cush.  (Mass.) 


160. 


SHolman  v.  Sch.  Trs.,  (  Mich.)  43  N.  W. 
•Sewell  y.  Bd.  Ed.,  29  Ohio  St.  89. 


996. 


PUPIL  — DISCHARGE,  DISMISSAL,  EXPULSION. 


175 


he  be  excused  therefrom,  will  justify  the  exclusion  of  a  scholar 
from  the  school.1 

§  153.  Pupil — discharge,  dismissal,  expulsion. — It  was 
held  that  pupils  may  be  suspended  from  high  school  department 
of  graded  school  for  failure  to  provide  themselves  with  a  certain 
music  book  and  practice,  even  where  the  child's  parent  con- 
siders such  study  unnecessary.  (But  see  Text-Book  section).2 
The  remedy  for  deprivation  of  the  privilege  of  attending  school 
is,  under  Mass.  Gen.  Stat,  ch.  41,  §  11,  by  an  action  against 
the  city  or  town  and  not  against  the  school  committee.3  A 
member  of  a  district-school  committee,  at  the  school-house  just 
before  the  opening  of  the  school,  being  addressed  by  one  of  the 
scholars  in  a  profane  and  insulting  manner,  ordered  him  to 
leave  the  room,  and  on  his  refusing  put  him  out  by  force ;  he 
was  justified  in  that  act  ;*  an  ejection  from  the  room  for  pro- 
fanity was  not  necessarily  an  expulsion  from  the  school,  and  it 
was  not  so  intended ;  and  as  it  could  not  have  that  effect,  in  an 
action  for  an  assault  for  the  forcible  ejection  of  the  plaintiff 
from  the  room  the  committee  would  not  be  chargeable  with  the 
loss  of  his  school  privileges  ;*  and  when  a  pupil  has  been  sus- 
pended and  uses  gross  profanity  and  vulgarity  to  the  board  on 
being  called  before  it,  he  forfeits  his  right,  if  any,  to  reinstate- 
ment, until  reparation  is  tendered.5  In  a  suit  for  damages  from 
the  suspension  of  a  pupil,  no  recovery  can  be  had  without  alle- 
gation and  proof  that  the  action  of  the  directors  was  wanton  or 
malicious.6  The  prudential  committee  of  a  school  district  may 
suspend  children  for  absence  contrary  to  the  rules  thereof, 
though  such  absence  is  pursuant  to  the  command  of  their 


i  Guernsey  T.  Pitkin,  32  Vt.  224. 
»  State  v.  Webber,  108  Ind.  31. 
«Learock  v.  Putnam,  111  Mass.  489. 


*  Peck  v.  Smith,  41  Conn.  442. 
«Bd.  Ed.  v.  Helston,  32  111.  AI 
«McCormick  v.  Burt,  95  111.  2C 


300. 


176 


PUBLIC   SCHOOL  LAW. 


Roman  Catholic  parents,  and  by  direction  of  their  priest,  for  the 
purpose  of  attending  religious  services  on  Corpus  Christi  day.1 
The  teacher  has  the  power  to  suspend  a  pupil  in  a  proper  case, 
unless  he  has  been  deprived  of  that  power  by  the  affirmative 
action  of  the  school  board  or  board  of  education.2  In  action  of 
trespass  for  unlawful  expulsion  of  pupil,  the  defendants,  teacher 
and  prudential  committee,  cannot  justify  under  plea  of  general 
issue,  and  as  to  which  expelled,  the  teacher  or  prudential  com- 
mittee, it  is  a  question  for  the  jury.3  In  Ohio  it  was  held  that 
the  father  may  maintain  an  action  against  the  teacher  of  a 
school  and  the  local  directors  of  the  sub-district,  for  damages 
for  wrongfully  expelling  his  child  ;*  but  the  contrary  doctrine 
was  held  in  N.  Y.,  that  such  action  can  only  be  brought  in  the 
name  of  the  child,  and  what  is  recovered  must  be  for  her 
benefit  ;5  and  in  Me.,  a  child  could  not  recover  damages,  in  an 
action  against  the  school  committee  by  whose  orders  the  pupil 
was  dismissed  for  failing  to  read  from  the  Bible.8  The  board  of 
education  may  require  a  pupil  to  inform  it  of  the  name  of 
another  pupil  who  has  been  guilty  of  a  breach  of  the  rules,  if  he 
acknowledges  that  it  is  known  to  him,  and,  on  his  refusal,  may 
suspend  him  ;7  but  the  suspension  does  not  extend  beyond  the 
current  school  year.7  A  board  of  directors  has  no  power  to 
suspend  except  for  breach  of  discipline,  or  an  offense  against 
good  morals  ;8  and  when  the  rights  of  a  citizen  are  involved, 
the  courts  may  determine  whether  authority  of  a  school  officer 
was  lawfully  exercised.8 

§  154.    Pupil,  punishment.  —  A  teacher  is  not  liable  for 
punishment  of  pupil  if  it  is  not  clearly  excessive  in  the  judgment 


iFerriter  v.  Tyler,  48  Vt.  444. 
2  State  v.  Burton,  45  Wis.  150. 
B Mack  v.  Kelsey,  (  Vt.)  17  A.  780. 
*Roe  v.  Deming,  21  Ohio  SL  666. 


.  Hall,  14  Barb.  (N.  Y.)  222. 
«Donahoe  v.  Richards,  38  Me.  376. 
?Bd.  Ed.  v.  Holstcra,  32  111.  App.  300. 
8  Perkins  v.  Ind.  Sch.  Dist,  56  Iowa,  476. 


PUPIL,   PUNISHMENT.  177 

of  reasonable  men  ;  an  instruction  that  it  is  lawful  punishment 
if  not  so  clearly  excessive  that  "  all  hands  would  at  once  say  it 
was  excessive,"  is  error.1  If  one  over  twenty-one  years  of  age 
voluntarily  attends  a  town  school,  and  is  received  as  a  scholar 
by  the  instructor,  he  is  under  the  same  restrictions  and  liabilities 
as  if  within  the  age  of  twenty-one  years.2  If  teacher  acts  in 
good  faith  without  malice,  he  is  not  liable  for  error  of  judg- 
ment;8 and  a  teacher  may  prohibit  and  punish  scholars  for 
quarreling  and  swearing  on  the  way  home,  though  not  provided 
for  by  directors'  rules.*  The  Tex.  statute  authorizes  moderate 
correction,  and  where  a  teacher  struck  a  pupil  with  a  switch  of 
reasonable  size  about  nine  times  on  the  legs,  showing  no  severe 
abrasions,  it  was  held  to  be  lawful  ;5  and  the  authority  of  teacher 
is  not  limited  to  school-room,  and  moderate  correction  is  al- 
lowed.6 Where  an  ordinary  whipping  was  inflicted  on  a  boy 
of  nine  years  of  age  for  fighting  away  from  school  and  not  dur- 
ing school  hours,  it  was  held  that  the  teacher  was  not  guilty  of 
an  assault.7  The  Wis.  statutes  give  the  school  board  in  each 
district  power  to  suspend  any  pupil  from  its  privileges  for  non- 
compliance  with  the  reasonable  rules  established  by  the  board 
or  by  the  teacher  with  its  consent.8  A  school  teacher,  in  regard 
to  a  pupil  intrusted  to  his  care  by  a  parent  or  guardian,  stands- 
in  loco  pa/rentis,  and  is  responsible  in  the  same  manner.9  While 
a  teacher  may  not  punish  a  pupil  for  misconduct  committed 
after  the  dismissal  of  school  for  the  day,  and  the  return  of  the 
pupil  to  his  home,  yet  he  may  at  school  punish  him  for  any 
misbehavior,  though  committed  out  of  school,  which  has  a  di- 
rect and  immediate  tendency  to  injure  the  school  and  to  sub- 

1  Patterson  v.  Nntter,  78  Me.  509. 

2 State  v.  Mizner,  45  Iowa,  248;   Stevens  v. 

Faeeett,  27  Me.  266. 
«  Heritage  v.  Dodge,  (N.  H.)  9  A.  722. 
^Dnskine  v.  Gore,  85  Mo.  485. 
—  12 


.  State,  (Tex.)  5  S.  W.  122. 
6 Balding  v.  State,  (Tex.)  4  S.  W.  122. 
7Hulton  v.  State.  23  Tex.  App.  386. 
8  Morrow  v.  Wood,  35  Wis.  59. 
8  Common  wealth  v.  Seed,  5  Pa.  L.  J.  R.  78. 


178 


PUBLIC   SCHOOL   LAW. 


vert  the  master's  authority.1  The  chastisement  of  a  scholar 
must  not  be  excessive  or  cruel  ;8  and  if  there  is  any  reasonable 
doubt  as  to  the  punishment  being  excessive,  the  teacher  should 
have  the  benefit  of  the  doubt.3 

§  155.  Pupil,  punishment.  —  Where  a  scholar  or  other 
person  in  school  hours,  refuses  to  leave  the  desk  of  the  in- 
structor on  the  request  of  the  master,  for  that  purpose  he  may 
immediately  use  such  force  and  remove  him  as  is  necessary  to 
accomplish  the  object,  without  the  direction  or  knowledge  of 
the  superintending  school  committee/  The  teacher  has  a  right 
to  moderately  chastise  a  pupil  for  refusing  to  give  an  excuse 
for  absence  without  leave.5  A  teacher  has  right  to  require 
obedience  to  reasonable  rules,  and  to  inflict  punishment  for  dis- 
obedience ;  in  the  absence  of  rules  by  the  school  board,  the 
teacher  may  make  all  necessary  rules.  The  teacher  should  be 
governed  by  the  age,  size  and  physical  condition  of  pupil  ;6  and 
he  may  whip  a  pupil  in  a  reasonable  manner.6  Where  teacher 
on  consulting  with  trustee  on  account  of  insubordination  of 
pupil,  gives  the  pupil  the  choice  of  chastisement  or  expulsion, 
and  he  chooses  the  former,  and  it  is  administered  and  quite 
painful  but  there  is  no  undue  severity  or  improper  motive  on 
part  of  teacher,  a  conviction  for  assault  and  battery  was  not 
justified.7  If  a  parent  acts  in  good  faith,  prompted  by  pure 
parental  love,  without  passion,  inflicts  no  permanent  injury  on 
the  child,  he  should  not  be  punished  merely  because  a  jury  re- 
viewing the  case,  deem  it  unwise  to  proceed  so  far  ;8  and  the 
right  of  the  parent  may  be  delegated  to  the  teacher.9  The  law 


i  Lander  v.  Seaver,  32  Vt.  114. 

a  Anderson  v.  State,  3  Head.  (Tenn.)  455. 

8  Lander  v.  Seaver,  32  Vt.  114. 

4  Stevens  v.  Fassett,  27  Me.  266. 

6Danenhoffer  v.  State,  69  Ind.  295. 

«  sheehan  v.  Sturges,  53  Conn.  481. 

'Vanvactorv.  State,  (Ind.)  15  N.  E.  341. 


81  Bish.  Cr.  Law,  (7th  ed.,)  g882;  Schouler's 
Com.  Rel.,  (4th  ed.,)  §244;  1  Black  Com. 
556;  1  Greenl.  Ev.,  §97;  2  Addison  on 
Torts,  (Wood's  ed.,)  §840;  Danenhoffer  v. 
State,  69  Ind.  295;  Com.  v.  Randall,  4  Gray, 
( Mass.)  36;  State  v.  Burton,  45  Wis.  150." 

9 2  Kent.  Com.,  §203. 


PUPIL,  PUNISHMENT. 


179 


will  not  hold  a  teacher  responsible  unless  the  punishment  occa- 
sion permanent  injury  to  the  child,  or  be  merely  to  gratify 
their  own  evil  passions ;  the  teacher  must  be  governed,  when 
chastisement  is  proper,  as  to  the  mode  and  severity  of  the  pun- 
ishment, by  the  nature  of  the  offense,  the  age,  size,  and  appar- 
ent powers  of  endurance  of  the  pupil.  It  is  for  the  jury  to 
decide  whether  the  punishment  is  excessive.1  The  qualification 
that  the  teacher  must  not  act  from  malice,  will  protect  pupils 
from  brutality,  whilst  the  teacher  is  protected  from  liability  for 
mere  errors  of  judgment.2  Infliction  of  moderate  correction, 
with  a  sound  discretion,  is  the  extent  of  authority  of  school 
master.3  A  school  master  is  regarded  as  standing  in  place  of 
the  parent,  and  may  administer  in  case  of  misconduct,  reason- 
able and  proper  punishment  to  a  pupil,  having  regard  to  the 
character  of  the  offense,  the  sex,  age,  size,  and  physical 
strength  of  the  offender ;  and  he  is  liable  criminally  for  any 
abuse  of  his  authority,  if  prompted  by  malice  or  other  improper 
motive,  if  unreasonably  severe,  if  inflicted  with  an  improper  in- 
strument, or  if  resulting  in  permanent  injury  to  the  pupil.* 

§  156.  Pupil,  punishment. — The  teacher  must  not  use  un- 
reasonable instruments  for  correction  or  impose  immoderate 
amount ;  if  he  does  he  will  be  criminally  liable.5  A  teacher 
cannot  lawfully  disfigure  a  pupil,  or  perpetrate  on  his  person 
any  other  permanent  injury.  As  said  by  Gaston,  J.,  in  State  v. 
Pendergrass,  2  Dev.  &  Bat.  Law,  365,  31  Amer.  Dec.  416,  a 
case  generally  approved  by  the  weight  of  American  authority : 
"It  may  be  laid  down  as  a  general  rule,  that  teachers  exceed 
the  limit  of  their  authority  when  they  cause  lasting  mischief, 


il  Wliart.  Or.  Law,  (8th  ed.,)  §632. 
'Lander  v.  Seaver,  32  Vt.  114;  State  v.  Alford, 

68  N.  C.  322. 
'Kent's  Com.,  203-206. 


«Boyd  v.  State,  88  Ala.  169. 
SBoyd  v.  State,  88  Ala.  169;   Schooler  Dom. 
Kel.,  (4thed.,)S244. 


180  PUBLIC   SCHOOL   LAW. 

but  act  within  the  limits  of  it  when  they  inflict  temporary  pain." 
Reasonable  correction  must  not  exceed  the  bounds  of  due  mod- 
eration, either  in  the  measure  of  it,  or  in  the  instrument  used ; 
if  the  teacher  exceeds  this  he  is  criminally  liable,  and  if  death 
ensues  from  the  brutal  injuries  inflicted,  he  may  be  liable  not 
only  for  assault  and  battery,  but  to  the  penalties  of  manslaugh- 
ter or  even  murder,  according  to  the  circumstances  of  the  case.1 
Where  teacher  after  chastising  pupil  severely  in  school-room 
followed  him  into  the  yard,  struck  him  with  a  stick,  put  his 
hands  in  his  pocket  as  if  to  draw  a  knife,  when  the  pupil  only 
protested,  and  after  apologizing  for  language  imputed,  asked  to 
withdraw,  and  the  teacher  hit  him  in  the  face  three  times  with 
his  fist,  and  then  hit  him  over  the  head  with  the  butt  end  of  a 
switch,  from  which  the  eye  was  closed  for  several  days,  and  the 
teacher  remarked  in  the  presence  of  the  school  that  he  could 
whip  any  man  in  China  Grove  beat,  he  was  convicted  and  fined.8 
When  the  punishment  is  unreasonable  and  from  wicked  motives 
under  the  influence  of  an  unsocial  heart,  damages  should  be 
given;  for  error  of  opinion  he  ought  to  be  excused,  but  for 
malice  of  heart  he  must  not  be  shielded  from  the  just  claims  of 
the  child ;  malice  may  be  proved  from  the  circumstances  at- 
tending the  punishment.8  Where  a  child,  as  directed  by  the 
father,  refused  to  prosecute  certain  studies  required  by  the 
teacher,  and  the  teacher  punished  the  child,  and  the  father 
prosecuted  the  teacher  for  assault  upon  the  child,  the  father  was 
held  not  liable  for  malicious  prosecution  of  that  case  ;*  and  a 
teacher  cannot  punish  a  pupil  for  refusing  to  do  that  which  a 
parent  has  asked  the  pupil  to  be  excused  from  doing.  The 


il  Archbold's  Cr.  Prac.,  218;  1  Bieh.  Cr.  Law, 

(Tthed.,)  §§881-2. 
SBoyd  v.  State,  88  Ala.  169. 


"Reeves  Dom.  Rel.,  (4th  ed.,)  357-358. 
*  Morrow  v.  Wood,  35  Wis.  59. 


PUPIL,  PUNISHMENT.  181 

teacher  may  refuse  to  permit  a  pupil  to  attend  if  the  pupil  does 
not  conform  to  the  rules.1  To  render  a  teacher  liable  to  crimi- 
nal prosecution  he  must  have  been  actuated  by  bad,  malevolent 
motives,  using  the  legal  authority  for  the  gratification  of  a  mind 
bent  on  mischief  in  inflicting  punishment  ;2  but  a  school  master 
is  not  relieved  from  liability  by  acting  ,in  good  faith  and  with- 
out malice,  honestly  thinking  the  punishment  necessary,  when 
it  was  clearly  excessive  and  unnecessary.3  Where  a  school 
master  punishes,  the  instrument  must  be  suitable,  and  be  ad- 
ministered with  moderation,  or  he  will  be  guilty  of  assault  and 
battery.*  In  a  prosecution  for  an  assault  on  pupil,  and  the  court 
left  it  to  the  jury  to  say  whether  the  punishment  was  excessive, 
and  refused  to  instruct  "  that  he  was  criminally  liable  only  when 
acting  from  malice  or  passion,  or  inflicted  excessive  punishment," 
there  was  no  error  ;5  and.  an  instruction  that  for  punishment  to 
be  illegal  it  must  be  so  excessive  as  to  excite  instant  condemna- 
tion of  all  men,  is  too  favorable  for  the  teacher  and  is  errone- 
ous.6 A  rule  requiring  pay  for  school  property  wantonly  or 
carelessly  destroyed,  should  not  be  enforced  by  corporal  punish- 
ment.7 

§  157.  Pupil,  punishment. — In  the  case  of  State  v.  Pen- 
dergrass,  2  Dev.  &  Batt.  (K  0.),  365,  it  was  held:  "The  law 
has  not  undertaken  to  prescribe  stated  punishments  for  particu- 
lar offenses,  but  has  contented  itself  with  the  general  grant  of 
the  power  of  moderate  correction,  and  has  confided  the  gra- 
dation of  punishments,  within  the  limits  of  this  grant,  to  the 
discretion  of  the  teacher.  The  line  which  separates  moderate 
correction  from  immoderate  punishment  can  only  be  ascer- 


i  State  v.  Mizner,  50  Iowa,  145. 

2 Commonwealth  v.  Seed,  5  Pa.  L.  J.  R.  78. 

3  Lander  v.  Seaver,  32  Vt.  114. 

4 Cooper  v.  McJunkin,  4  Ind.  290. 


6  Common  wealth  v.  Randall,  4  Graj,  (Mass.) 

'Patterson  v.  Nutter,  (Me.)  7  A.  273. 
'State  v.  Vanderbilt,  (Ind.)  18  N.  E.  266. 


182 


PUBLIC   SCHOOL   LAW. 


tained  by  reference  to  general  principles.  The  welfare  of  the 
child  is  the  main  purpose  for  which  pain  is  permitted  to  be 
inflicted.  Any  punishment,  therefore,  which  may  seriously  en- 
danger life,  limbs,  or  health,  or  shall  disfigure  the  child,  or 
cause  any  other  permanent  injury,  may  be  pronounced  in  itself 
immoderate,  as  not  only  being  unnecessary  for,  but  inconsistent 
with,  the  purpose  for  which  correction  is  authorized ;  but  any 
correction,  however  severe,  which  produces  temporary  pain 
only,  and  no  permanent  ill,  cannot  be  so  pronounced,  since  it 
may  have  been  necessary  for  the  reformation  of  the  child,  and 
does  not  injuriously  affect  its  future  welfare.  .  .  , 

"We  hold,  therefore,  that  it  may  be  laid  down  as  a  general 
rule,  that  teachers  exceed  the  limits  of  their  authority  when 
they  cause  lasting  mischief,  but  act  within  the  limits  of  it  when 
they  inflict  temporary  pain.  .  .  . 

"But  the  master  may  be  punishable  when  he  does  not  tran- 
scend the  powers  granted,  if  he  grossly  abuses  them.  If  he 
use  his  authority  as  a  cover  for  malice,  and  under  pretense  of 
administering  correction  gratify  his  own  bad  passions,  the  mask 
of  the  judge  shall  be  taken  off,  and  he  will  stand  amenable  to 
justice  as  an  individual  not  invested  with  judicial  power." 

§  158.  Pupil,  punishment. — In  the  following  instances, 
the  exercise  of  power  has  been  sustained  :  Suspending  pupil  for 
refusing  to  disclose  the  name  of  offending  pupil  •/  for  tardiness  ;2 
for  failure  to  use  text-books  ;3  for  absence  ;*  for  misconduct  ;5 
suspension  of  pupil  by  officer  ;5  suspension  of  pupil  by  teacher, 


iBd.  v.  Helston,  32  111.  App.  300. 

«  Russell  v.  Linnfield,  116  Mass.  366;  Bendick 
v.  Babcock,  31  Iowa,  562. 

•Spiiler  v.  Woburn,  12  Allen,  (Mass.)  127; 
McCormick  v.  Burt,  95  111.  266;  Donahoe 
v.  Kichards,  38  Me.  379;  Kidder  v.  Chellis, 
59  N.  H.  473;  Guernsey  v.  Pitkin,  32  Vt. 
226;  Sewell  v.  Bd.  Ed.,  29  Ohio  St.  89. 


4Ferriter  v.  Tyler,  48  Vt.  444;  King  v.  Jeffer- 
son City  Sch.  Bd.,  71  Mo.  628;  Churchill  v. 
Fewkes,  13  Brad.  (111.)  520. 

6  Stevens  v.  Fassett,  27  Me.  266;  Larock  v. 
Putnam,  111  Mass.  499;  Hods^kins  v.  Rock- 
port,  105  Mass.  476;  State  v^  Williams,  27 
Vt.  755. 


PUPIL,  PUNISHMENT. 


183 


where  the  officer  opposed  the  teacher  j1  expelling  for  immor- 
ality ;8  corporal  punishment  for  misconduct  ;3  the  teacher  refus- 
ing to  teach  pupil,  has  been  held  not  liable  for  damages;* 
suspending  teacher  for  immorality  was  sustained.5 

§  159.  Pupil,  punishment. — In  the  following  instances, 
the  exercise  of  authority  has  not  been  sustained :  For  barring 
out  tardy  pupil  ;8  for  suspending  pupil  for  failure  to  use  text- 
books required  ;7  for  suspending  for  attending  a  party  ;8  for 
reflecting  on  the  director  by  newspaper  article  ;9  for  suspending 
for  not  paying  for  broken  window  ;10  for  suspending  for  using 
tobacco,  the  director  being  opposed  to  teacher;11  for  man- 
slaughter of  slave.12  Corporal  punishment :  For  failing  to  use 
text-book  ;13  for  not  paying  for  broken  window  ;u  for  miscon- 
duct ;15  for  accidentally  adding  aloud.16 

§  160.  Pupil,  punishment. — In  Lander  v.  Se<wer,  32  Yt. 
114,  which  is  the  leading  case  on  the  question  as  to  the  right 
to  punish  pupil  for  insulting  teacher  in  presence  of  other  pupils 
after  the  pupil  has  returned  home,  it  was  decided :  "  School 
master  has  power  to  punish  pupil  for  all  acts  of  the  latter 
which  are  detrimental  to  the  good  order  and  best  interest  of 
the  school,  whether  such  acts  are  committed  in  school  hours, 
or  after  the  pupil  has  returned  home,  or  while  he  is  engaged  in 
the  service  of  his  parent. 

"  School  master  is  liable  in  damages  for  an  excessive  punish- 


i  Scott  v.  Sch.  Dist.,  46  Vt  452. 

'Sherman  v.  Inhabitants,  8  Gush.  ( Mass.)  163. 

'State  v.  Pendergrase,  2  Dev.  &  Batt.  (N.  C.) 
365 ;  Sheehan  v.  Stur^is,  53  Conn.  481 ;  Dan- 
nehoffer  v.  State,  69  Ind.  295;  State  v.  Miz- 
ner,  45  Iowa,  248;  Davis  v.  Boston,  133 
Mass.  103;  Patterson  v.  Nutter,  78  Me. 
509;  Deskins  v.  Gore,  85  Mo.  485. 

*  Spear  v.  Cummings,  24  Pick.  (Mass.)  224. 

OMcClellan  v.  Bd.,  15  Mo.  App.  362. 

«  Thompson  v.  Beaver,  63  III.  356. 

'Trustees  v.  People,  87  111.  303;  Morrow  v. 
Wood,  35Wis.59;  Kulisonv.  Post,79 111.567. 


.  Snodgrass,  66  Mo.  286. 
9  Murphy  v.  Directors,  30  Iowa,  429. 

10  Perkins  v.  Directors,  56  Iowa,  476. 

"Parker  v.  Sch.  Dist.,  5  Lea  (Tenn.)  525. 

"State  v.  Harris,  63  N.  C.  7. 

18  State  v.  Mizner,  50  Iowa,  145. 

"State  v.  Vanderbilt,  (Ind.)  18  N.  E.  266 

"Com.  v.  Randall,  4  Gray  (Mass.)  36;  Boyd 
v.  State,  88  Ala.  169;  Cooper  v.  McJunkiu, 
4  Ind.  290;  Hathaway  v.  Rice,  19  Vt.  102. 

"Anderson  v.  State,  3  Head  (Tenn.)  455. 


184  PUBLIC   SCHOOL   LAW. 

ment  of  a  pupil,  even  though  he  acted  in  good  faith  and  with- 
out malice  in  inflicting  it,  and  considered  it  necessary,  and  not 
excessive ;  but  in  case  of  doubt,  he  is  entitled  to  the  benefit 
of  it. 

"Where  excessive  punishment  of  pupil  is  charged  against  a 
school  master,  evidence  that  the  ordinary  management  of  the 
latter  was  mild  and  moderate  is  not  admissible. 

"If  evidence  that  school  master  acted  maliciously  in  admin- 
istering the  punishment  should  be  given  by  those  prosecuting 
him,  evidence  that  the  school  master  was  ordinarily  mild  and 
moderate  would  be  admissible. 

"It  is  question  for  jury  to  determine  whether  the  instrument 
used  by  school  master  to  inflict  punishment  upon  the  pupil  is  a 
proper  one  for  such  purpose. 

"To  rebut  presumption  or  proof  of  malice  in  punishing  pupil, 
it  is  competent  for  the  school  master  to  prove  that  the  instru- 
ment used  by  him  in  punishing  the  pupil  was  such  as  was  gen- 
erally used  for  such  purposes  by  other  teachers  in  the  vicinity. 

"It  is  competent  for  school  master,  who  is  defending  himself 
in  an  action  of  trespass  for  assault  and  battery  upon  a  pupil,  to 
prove  that  at  a  former  trial  of  the  same  case  the  plaintiff  made 
no  claim  that  the  punishment  inflicted  was  excessive,  and  that 
then  plaintiff  only  claimed  that  the  master  had  no  right  to  in- 
flict the  punishment,  because  the  offense  of  the  pupil  was  not 
committed  in  school  hours. 

"By  Court,  Aldis,  J.:  The  defendant  was  a  teacher  in  a  public 
school  in  Burlington  ;  the  plaintiff,  his  pupil.  The  first  question 
presented  is :  Has  a  school  master  the  right  to  punish  his  pupil 
for  acts  of  misbehavior  committed  after  the  school  has  been 
dismissed,  and  the  pupil  has  returned  home  and  is  engaged  in 
his  father's  service? 


PUPIL,  PUNISHMENT.  185 

"I.  It  is  conceded  that  his  right  to  punish  extends  to  school 
tours,  and  there  seems  to  be  no  reasonable  doubt  that  the 
supervision  and  control  of  the  master  over  the  scholar  extend 
from  the  time  he  leaves  home  to  go  to  school  till  he  returns 
from  school.  Most  parents  would  expect  and  desire  that 
teachers  would  take  care  that  their  children,  in  going  to  and 
returning  from  school,  should  not  loiter,  or  seek  evil  company, 
or  frequent  vicious  places  of  resort.  But  in  this  case,  as  appears 
from  the  bill  of  exceptions,  the  offense  was  committed  an  hour 
.and  a  half  after  the  school  was  dismissed,  and  after  the  boy  had 
returned  home,  and  while  he  was  engaged  in  his  father's  service. 
When  the  child  has  returned  home,  or  to  his  parent's  control, 
then  the  parental  authority  is  resumed  and  the  control  of  the 
teacher  ceases,  and  then,  for  all  ordinary  acts  of  misbehavior, 
the  parent  alone  has  the  power  to  punish.  It  is  claimed,  how- 
ever, that  in  this  case  '  the  boy,  while  in  the  presence  of  other 
pupils  of  the  same  school,  used  toward  the  master  and  in  his 
hearing  contemptuous  language,  with  a  design  to  insult  him,  and 
which  had  a  direct  and  immediate  tendency  to  bring  the 
authority  of  the  master  over  his  pupils  into  contempt  and  lessen 
his  hold  upon  them  and  his  control  over  the  school.'  This, 
under  the  charge  of  the  court,  must  have  been  found  by  the 
.jury. 

"This  misbehavior,  it  is  especially  to  be  observed,  has  a 
direct  and  immediate  tendency  to  injure  the  school,  to  subvert 
the  master's  authority,  and  to  beget  disorder  and  insubordina- 
tion. It  is  not  misbehavior  generally,  or  towards  other  persons, 
or  even  towards  the  master  in  matters  in  no  way  connected 
with  or  affecting  the  school ;  for  as  to  such  misconduct,  com- 
.mitted  by  the  child  after  his  return  home  from  school,  we 


186  PUBLIC   SCHOOL   LAW. 

think  the  parents,  and  they  alone,  have  the  power  of  punish- 
ment. 

"But  where  the  offense  has  a  direct  and  immediate  tendency 
to  injure  the  school  and  bring  the  master's  authority  into  con- 
tempt, as  in  this  case,  when  done  in  the  presence  of  other 
scholars  and  of  the  master,  and  with  a  design  to  insult  him,  we 
think  he  has  the  right  to  punish  the  scholar  for  such  acts  if  he 
comes  again  to  school. 

"The  misbehavior  must  not  have  merely  a  remote  and  indi- 
rect tendency  to  injure  the  school.  All  improper  conduct  or 
language  may  perhaps  have,  by  influence  and  example,  a  re- 
mote tendency  of  that  kind ;  but  the  tendency  of  the  acts  so 
done  out  of  the  teacher's  supervision  for  which  he  may  punish 
must  be  direct  and  immediate  in  their  bearing  upon  the  welfare 
of  the  school,  or  the  authority  of  the  master  and  the  respect 
due  him.  Cases  may  readily  be  supposed  which  lie  very  near 
the  line,  and  it  will  often  be  difficult  to  distinguish  between  the 
acts  which  have  such  an  immediate  and  those  which  have  such 
a  remote  tendency ;  hence,  each  case  must  be  determined  by 
its  peculiar  circumstances. 

"Acts  done  to  deface  or  injure  the  school-room,  to  destroy 
the  books  of  scholars,  or  the  books  or  apparatus  for  instruction,, 
or  the  instruments  of  punishment  of  the  master ;  language  used 
to  other  scholars  to  stir  up  disorder  and  insubordination,  or  to 
heap  odium  and  disgrace  upon  the  master ;  writings  and  pic- 
tures placed  so  as  to  suggest  evil  and  corrupt  language,  images 
and  thoughts  to  the  youth  who  must  frequent  the  school — all 
such  or  similar  acts  tend  directly  to  impair  the .  usefulness  of 
the  school,  the  welfare  of  the  scholars,  and  the  authority  of  the 
master.  By  common  consent,  and  by  the  universal  custom  in 
our  New  England  schools,  the  master  has  always  been  deemed 


PUPIL,  PUNISHMENT.  1ST 


to  have  the  right  to  punish  such  offenses.  Such  power  is  es- 
sential to  the  preservation  of  order,  decency,  decorum  and  good 
government  in  schools.  Upon  this  point  the  charge  of  the 
court  was  substantially  correct. 

"II.  The  court  charged  the  jury  that  although  the  punish- 
ment inflicted  on  the  plaintiff  was  excessive  in  severity  and  dis- 
proportioned  to  the  offense,  still  if  the  master  in  administering 
it  acted  with  proper  motives,  in  good  faith,  and  in  his  judgment 
for  the  best  interests  of  the  school,  he  would  not  be  liable ;  that 
the  school  master  acts  in  a  judicial  capacity,  and  that  the  inflic- 
tion of  excessive  punishment,  when  prompted  by  good  inten- 
tions and  not  by  malice  or  wicked  motives  or  an  evil  mind,  is* 
merely  an  honest  error  of  opinion,  and  does  not  make  him  lia- 
ble to  the  pupil  for  damages.  The  plaintiff  claims  that  this  was 
erroneous. 

"1.  It  is  claimed  on  behalf  of  the  defendant  that  the  school 
master  is  a  public  officer,  that  in  his  government  of  the  school 
he  is  invested  with  public  authority,  with  discretionary  powers, 
and  acts  in  a  judicial  capacity,  and  so  is  not  liable  for  errors  of 
judgment.  His  authority  has  been  likened  to  that  of  public  of- 
ficers, such  as  listers  in  the  case  of  Fuller  v.  Gould,  20  Yt.  643  ; 
the  postmaster-general  in  Kendall  v.  Stokes,  3  How.  87;  the 
mayor  of  New  York  in  Wilson  v.  Mayor,  etc.,  1  Denio  595, 
(43  Am.  Dec.  719) ;  or  a  commander  in  the  navy,  as  in  Wilkes 
v.  Dinsman,  7  How.  89. 

"We  think  the  school  master  does  not  belong  to  the  class  of 
public  officers  vested  with  such  judicial  and  discretionary  powers. 
He  is  included  rather  in  the  domestic  relation  of  master  and 
servant,  and  his  powers  and  duties  are  usually  treated  of  as  be- 
longing to  that  class.  In  some  sense  he  may  be  said  to  act  by 


188  PUBLIC   SCHOOL   LAW. 

public  authority,  and  to  be  a  public  officer,  but  we  do  not  find 
him  spoken  of  anywhere  as  acting  in  a  judicial  capacity,  except 
in  the  passage  from  Reeves's  Domestic  Relations,  which  was 
read  to  the  jury.  In  no  proper  sense  can  he  be  deemed  a  pub- 
lic officer  exercising,  by  virtue  of  his  office,  discretionary  and 
•quasi  judicial  powers. 

"  2.  It  is  also  said  that  he  stands  in  loco  parentis,  and  is  in- 
Tested  with  all  the  authority  and  immunity  of  the  parent.  Such 
would  seem  to  be  the  doctrine  of  the  passage  cited  from  Judge 
Reeves's  work. 

"The  parent,  unquestionably,  is  answerable  only  for  malice 
or  wicked  motives  or  an  evil  heart  in  punishing  his  child.  This 
great,  and  to  some  extent  irresponsible,  power  of  control  and 
correction  is  invested  in  the  parent  by  nature  and  necessity.  It 
springs  from  the  natural  relation  of  parent  and  child.  It  is 
felt  rather  as  a  duty  than  a  power.  From  the  intimacy  and 
nature  of  the  relation,  and  the  necessary  character  of  family 
government,  the  law  suffers  no  intrusion  upon  the  authority  of 
the  parent,  and  the  privacy  of  domestic  life,  unless  in  extreme 
cases  of  cruelty  and  injustice.  This  parental  power  is  little 
liable  to  abuse,  for  it  is  continually  restrained  by  natural  affec- 
tion, the  tenderness  which  the  parent  feels  for  his  offspring,  an 
affection  ever  on  the  alert,  and  acting  rather  by  instinct  than 
.reasoning. 

"The  school  master  has  no  such  natural  restraint.  Hence  he 
may  not  safely  be  trusted  with  all  a  parent's  authority,  for  he 
does  not  act  from  the  instinct  of  parental  affection.  He  should 
be  guided  and  restrained  by  judgment  and  wise  discretion,  and 
hence  is  responsible  for  their  reasonable  exercise.  The  limit 
•upon  the  parental  authority  transferred  to  the  master  is  well  ex- 


PUPIL,  PUNISHMENT.  189- 


pressed  by  Judge  Blackstone.  He  says :  'The  master  is  in  loco 
parentis,  and  has  such  a  portion  of  the  power  of  the  parent 
committed  to  his  charge  as  may  be  necessary  to  answer  the  pur- 
poses for  which  he  is  employed.'  An  English  annotator,  in  a 
note  to  the  passage,  very  properly  adds:  'This  power  must  be 
temperately  exercised,  and  no  school  master  should  feel  himself 
at  liberty  to  administer  chastisement  co-extensive  with  the* 
parent.' 

"Judge  Swift,  in  his  Digest,  in  a  very  admirable  summary 
of  the  powers  and  duties  of  the  school  master,  remarks  that  if 
the  punishment  is  immoderate,  so  that  the  child  sustains  a  ma- 
terial injury,  the  master  is  liable  in  damages.  In  a  recent  case 
in  Massachusetts  —  Commonwealth  v.  Randall,  4  Gray,  36  — 
the  defendant  asked  the  judge  to  instruct  the  jury  that  the 
school  master  is  liable  i  only  when  he  acts  malo  animo,  from 
vindictive  feelings,  or  under  the  violent  impulses  of  passion  or 
malevolence,  and  that  he  is  not  liable  for  errors  of  opinion  or 
mistakes  of  judgment,  provided  he  is  governed  by  an  honest 
purpose  of  heart  to  promote  by  the  discipline  employed  the 
highest  welfare  of  the  school  and  the  best  interest  of  the- 
scholar.  In  the  case  at  bar  the  court  charged  substantially 
according  to  that  request;  but  in  the  case  reported  in  Gray- 
the  court  refused  so  to  charge,  and  did  charge  that  if  the  jury- 
found  that  the  punishment  was  excessive  and  improper,  then 
the  master  might  properly  be  found  guilty.  The  charge  was 
held  to  be  correct,  upon  the  hearing  of  the  defendant's  excep- 
tions in  the  supreme  court.  In  the  case  of  Hathaway  v.  Rice, 
19  Yt.  102,  we  think  the  principle  involved  in  the  decision 
establishes  the  same  doctrine. 

"  Suits  of  this  character  have  frequently  arisen  in  this  state,. 


190  PUBLIC   SCHOOL   LAW. 

and  the  rulings  of  our  courts  at  nisi  prius,  have,  we  think,  been 
quite  uniform  on  this  point.  The  law,  as  we  deem  it  to  exist, 
is  this :  A  school  master  has  the  right  to  inflict  reasonable  cor- 
poral punishment.  He  must  exercise  reasonable  judgment  and 
discretion  in  determining  when  to  punish,  and  to  what  extent. 
In  determining  upon  what  is  a  reasonable  punishment,  various 
considerations  must  be  regarded :  the  nature  of  the  offense,  the 
apparent  motive  and  disposition  of  the  offender,  the  influence 
of  his  example  and  conduct  upon  others,  and  the  sex,  age,  size, 
and  strength  of  the  pupil  to  be  punished.  Among  reasonable 
persons,  much  difference  prevails  as  to  the  circumstances  which 
will  justify  the  infliction  of  punishment,  and  the  extent  to  which 
it  may  properly  be  administered.  On  account  of  this  difference 
of  opinion,  and  the  difficulty  which  exists  in  determining  what  is 
a  reasonable  punishment,  and  the  advantage  which  the  master 
has  by  being  on  the  spot  to  know  all  the  circumstances,  the  man- 
ner, look,  tone,  gestures,  and  language  of  the  offender  (which 
are  not  always  easily  described),  and  thus  to  form  a  correct 
opinion  as  to  the  necessity  and  extent  of  the  punishment,  con- 
siderable allowance  should  be  made  to  the  teacher  by  way  of 
protecting  him  in  the  exercise  of  his  discretion.  Especially 
should  he  have  this  indulgence  when  he  appears  to  have  acted 
from  good  motives,  and  not  from  anger  or  malice.  Hence  the 
teacher  is  not  to  be  held  liable  on  the  ground  of  excess  of  pun- 
ishment unless  the  punishment  is  clearly  excessive,  and  would 
be  held  so  in  the  general  judgment  of  reasonable  men.  If  the 
punishment  be  thus  clearly  excessive,  then  the  master  should  be 
held  liable  for  such  excess,  though  he  acted  from  good  motives 
in  inflicting  the  punishment ;  and  in  his  own  judgment  consid- 
ered it  necessary,  and  not  excessive.  But  if  there  is  any  rea- 


PUPIL,  PUNISHMENT.  191 

sonable  doubt  whether  the  punishment  was  excessive,  the  master 
should  have  the  benefit  of  the  doubt.  Upon  this  point  there 
was  error  in  the  charge. 

"III.  The  court  admitted  evidence  to  show  that  the  general 
character  of  the  defendant,  as  a  master,  in  governing  his  school 
was  mild  and  moderate. 

"As  the  court  put  the  case  to  the  jury  upon  the  question  of 
the  defendant's  malice  in  inflicting  the  punishment,  this  evidence, 
in  that  view,  might  be  admissible  as  tending  to  disprove  such 
intent.  It  might,  perhaps,  be  properly  said,  that  the  nature  of 
such  an  action,  turning  upon  that  point,  involved  the  character 
of  the  defendant.  But  as  we  have  already  decided  that  the 
question  of  excessive  punishment  is  not  affected  by  the  motive 
or  intent  of  the  master,  we  are  of  the  opinion  that  this  evidence 
of  general  good  character  is  not  admissible  upon  that  issue. 
Good  character  does  not  tend  to  prove  that  the  assault  and 
battery  were  or  were  not  committed,  or  that  the  punishment 
was  or  was  not  excessive.  But  when  evidence  is  given  tending 
to  show  that  the  master  acted  maliciously  or  wantonly,  from  an 
evil  heart,  and  the  plaintiff  claims  to  recover  damages  on  that 
ground,  there,  we  think,  the  evidence  would  be  admissible  (1 
Greenl.  Ev.,  §  54,  and  notes)  to  rebut  such  intent.  But  it 
should  be  strictly  limited  to  that  purpose.  In  other  respects, 
we  find  no  error  in  the  charge. 

UIY.  Whether  a  rawhide  was  a  proper  instrument  of  punish- 
ment, was  left  to  the  jury,  with  very  suitable  instructions.  The 
evidence  to  show  that  the  rawhide  was  used  in  other  schools  in 
the  vicinity  was  properly  admitted  to  rebut  the  charge  of  malice, 
by  showing  that  he  did  not  resort  to  an  unusual  instrument  of 
punishment.  The  testimony  to  show  that  the  plaintiff  did  not 

[UFI7E.     ry 


192 


PUBLIC   SCHOOL   LAW. 


claim  an  excess  of  punishment  on  the  first  trial  was  proper,  as 
tending  to  prove  that  that  claim  on  the  then  pending  trial  was- 
not  well  founded.  Judgment  reversed." 

§  161.  Pupil,  residence. — School  directors  have  power  to 
send  pupils  to  schools  of  adjoining  district,  but  such  power 
should  be  carefully  exercised  ;J  the  abuse  of  this  discretion  by 
the  directors  will  be  official  misconduct ;  but  unless  such  abuse 
is  clearly  shown,  courts  will  not  interfere.1  Towns  and  cities- 
in  Mass,  have  no  right  to  receive  children  into  their  schools 
whose  parents  or  guardians  reside  in  another  state ;  and  they 
cannot  sue  the  parents  for  such  tuition,  even  on  an  express 
contract.2  In  Mo.,  children  who  are  not  orphans  nor  appren- 
tices, and  whose  parents  are  non-residents  of  the  district,  should 
not  attend  in  that  district.3  Residents  of  government  reserva- 
tions for  navy  yards,  forts,  and  arsenals,  where  there  is  no 
other  reservation  of  jurisdiction  to  the  state  than  that  of  a 
right  to  serve  criminal  and  civil  processes  on  such  lands,  are 
not  entitled  to  the  benefits  of  the  common  schools,  for  their 
children,  in  the  towns  in  which  the  lands  are  situated.*  Where 
a  father  bound  out  his  children  as  apprentices  in  a  district 
where  he  did  not  reside,  for  the  purpose  of  schooling  his  chil- 
dren there,  without  the  consent  of  the  district,  they  were  tres- 
passers, and  liable  to  an  action  by  the  district  for  attending 
school.5  In  N.  H.  the  children  supported  at  a  county  poor- 
farm  have  the  right  to  attend  the  public  school  in  that  dis- 
trict.6 Under  G.  S.  Conn.,  §§2102,  2118,  requiring  attendance 
at  school,  a- child  whose  parents  are  non-residents,  and  who 
lives  with  others  with  her  parents'  consent,  with  whom  she 


i  Freeman  v.  Sch.  Dire.,  37  Pa.  St.  385. 
SHaverhill  v.  Gale,  103  Mass.  104;  Wheeler  v. 

Burrow,  18  Ind.  14. 
"Binde  v.  Klinge,  30  Mo.  App.  285. 


^Opinion  judges,  1  Mete.  (Mass.)  580. 
*Sch.  Dist.  v.  Bragdon,  23  N.  H.  ( 3  Fost.)  507. 
«Sch.  Dist  v.  Pollard,  55  N.  H.  503. 


PUPIL,   RESIDENCE.  193 


and  her  parents  expect  her  to  live  permanently,  has  a  right  to 
attend  the  school  of  the  district  in  which  she  resides.1 

§  162.  Pupil,  residence. — In  Lamar  v.  Micou,  112  IT.  S. 
452,  5  Sup.  Ct.  Rep.  221,  Justice  Gray  says,  in  the  opinion  : 
uAn  infant  cannot  change  his  own  domicile.  As  infants  have 
the  domicile  of  their  father,  he  may  change  their  domicile  by 
changing  his  own ;  and  after  his  death,  the  mother,  while  she 
remains  a  widow,  may  likewise,  by  changing  her  domicile, 
change  the  domicile  of  the  infants,  the  domicile  of  the  children 
in  either  case  following  the  independent  domicile  of  their 
parent."2  "Generally  speaking,  domicile  and  residence  mean 
the  same  thing."3  Under  the  Comp.  Stat.  Mont.,  pp.  1886, 
1907,  where  the  census  returns,  as  residents  of  one  district, 
children  whose  fathers  reside  and  who  attend  school  in  other 
districts,  it  is  proper  for  the  superintendent  to  transfer  them  to 
the  latter  districts,  and  apportion  the  money  accordingly/  Ky. 
act  1888,  §  16,  authorizes  the  trustees  to  admit  children  residing 
outside  of  the  district,  "upon  such  terms  and  conditions,  and 
upon  payment  of  such  charges,  as  the  said  board  may  deem 
right."5  To  recover  payment  for  instruction  given  to  non-resi- 
dents' children,  there  must  have  been  a  previous  arrangement 
between  the  directors  of  the  respective  districts,  as  directed  by 
the  Pa.  school  law  of  1854 ;  regular  official  action,  evidenced 
by  official  minutes,  is  required  by  the  statute.6  In  Acts  Ga.. 
1889,  pp.  1305,  1306,  a  provision  that  the  local  board  may 
admit  pupils  not  residents  of  the  town  on  such  terms  as  the 
board  may  prescribe,  does  not  allow  the  board  to  prescribe 
terms  which  would  cast  upon  the  town  or  its  inhabitants  any 


1  Yale  v.  West  Md.  Sch.  Dist.,  59  Conn.  489. 

2  Sen.  Dir.  v.  James,  2  Watts  &  S.  568;  Story 

Confl.  Laws,  46. 

3  Kennedy  v.  Ryall,  67  N.  Y.  379. 

—  13 


< Sch.  Dist.  v.  Patterson,  (Mont.)  24  P.  698. 
6Rogers  Trs.,  (Ky.)  13  S.  W.  587. 
•Cascade  v.  Lewis,  43  Pa.  St.  318. 


194  PUBLIC   SCHOOL   LAW. 

part  of  the  expense  of  educating  non-resident  pupils  j1  the  main 
purpose  being  to  establish  and  maintain  a  system  of  public 
schools  in  the  town,  an  unconstitutional  requirement  therein, 
which  exacts  an  incidental  fee  annually  of  all  pupils,  thereby 
including  resident  as  well  as  non-resident  pupils,  will  not  vitiate 
the  whole  statute  ;2  but  non-resident  cannot  be  admitted  to  the 
exclusion  of  resident.8  The  school  inspectors  of  Peoria,  111., 
may  divide  the  city  into  districts,  and  may  exercise  the  same 
discretion  in  establishing  rules  for  the  admission  of  pupils.4 
As  an  appeal  lies  from  the  decision  of  the  township  trustee 
upon  the  application  of  an  inhabitant  to  be  transferred  for 
school  purposes  to  another  township,  mandamus  will  not  lie 
against  the  trustee.5  Special  act  for  Carlisle  (Ky.)  schools  per- 
mits children  non-resident  of  the  district  to  attend  by  paying 
charges  fixed  by  board  of  trustees.6 

§163.  Pupil's  tuition.  —  A.  made  a  conveyance  of  real 
estate  to  the  city  of  Buffalo,  reciting  that  it  was  made  "with  a 
view  of  aiding  in  the  establishment  of  an  institution  where  the 
children  of  those  who  are  unable  or  unwilling  to  provide  for 
their  education  may  receive  the  same  free  of  expense,"  and 
"for  the  use,  maintenance,  and  support  of  a  free  school,  and 
for  no  other  purpose."  The  word  "free"  did  not  mean  free  in 
respect  to  the  universal  admissibility  of  the  children  of  all 
classes  of  inhabitants  of  districts.7  Where  commissioners  in 
Ala.  neglect  to  employ  teachers  or  appropriate  money  for 
tuition  of  children  if  they  attend  within  the  limits  of  township, 
the  tuition-money  may  be  recovered  from  any  one  of  them 
by  any  legal  voter,  to  defray  it.8  Under  Const.  Ga.,  (Code, 

i  IrvHi  v.  Gregory,  (  Ga.)  13  S.  E.  120.  «Folge  v.  Gregg,  26  Ind.  345. 

airvin  v.  Gregory,  (Ga.)  13  S.  E.  605;  86  Ga.  'Rogers  v.  Trs.  Graded  Sch.,  (Ky.)  13  S.  W. 

605.  587. 

»Irvin  v.  Gregory,  9  A.  695.  ?Le  Couteuix  v.  Buffalo,  33  N.  Y.  333. 

*  Grove  v.  Sch.  Insp.,  20  111.  532.  ^Burnes  v.  Minter,  12  Ala.  316. 


KECORD,  ETC. 


195 


p.  5304,)  a  municipal  public  school  cannot  exact  incidental  fees 
from  resident  scholars.1  Under  Iowa  Code,  §  1793,  where  the 
directors  of  the  district  in  which  the  children  reside,  upon 
being  notified  of  their  attendance  elsewhere,  decide  not  to  pay 
their  tuition,  no  other  demand  is  necessary,  and  the  account 
may  then  be  filed  with  the  auditor.2 

§  164.  Record,  etc. — Parol  evidence  is  competent  to  prove 
that  a  board  of  education  had  approved  the  bond  of  their  treas- 
urer, although  no  entry  was  made  on  the  minutes  of  the  pro- 
ceedings of  the  board.3  Record  of  district  meeting  which  fails 
to  state  the  hour,  but  refers  to  notice  which  does,  is  sufficient.* 
Where  the  record  of  the  proceedings  of  the  school  board  is  de- 
fective, it  may  be  explained  or  supplied  by  parol  testimony,6 
and  where  certain  parts  of  the  minute  book  of  a  board  of  school 
directors  were  read  in  evidence  by  one  party,  and  the  counsel 
read  and  commented  to  the  jury  upon  other  parts  of  the  book 
not  given  in  evidence,  to  which  objection  was  made,  the  court 
properly  directed  the  jury  to  confine  their  attention  to  such 
parts  of  the  minute  book  as  were  read  in  evidence.6  Where 
the  records  showed  a  vote  to  adjourn  to  another  place,  and  ac- 
tion had  at  such  place,  it  will  be  presumed  that  the  adjournment 
was  to  meet  forthwith,  in  absence  of  record  otherwise.7  The 
records  should  prove  all  matters  themselves  that  should  be  upon 
the  record.8  Failure  to  keep  proper  records  will  not  render  sub- 
sequent officers  liable  therefor,  nor  render  prior  proceedings 
void ;'  and  the  minutes  by  clerk  pro  tempore  entered  of  record 
after  he  became  clerk  in  fact,  were  held  valid.10 


ilrvin  v.  Gregory,  86  Ga.  605. 
sHorton  v.  Ocheyedan,  49  Iowa,  231. 
SBartlett  v.  Bd.  Ed.,  59  111.  364. 
*Howland  v.  Sch.  Diet.,  15  R.  I.  184. 
6  Gearhart  v.  Dixon,  1  Pa.  St.  224. 
'Manchester  v.  Reserve  Tp.,  4  Pa.  St.  35. 


i  Converse  v.  Porter,  45  N.  H.  385. 
ssherwin  v.  Bugbee,  17  Vt.  337;  Bartlett 

Kinsley,  15  Conn.  327. 
•Higgins  v.  Reed,  8  Clarke,  (Iowa)  298. 
10  Bartlett  T.  Kinsley,  15  Conn.  327. 


196  PUBLIC   SCHOOL  LAW. 

§  165.  Record. — Where  it  did  not  appear  that  there  was  an 
election  of  a  prudential  committee  and  another  record  was  in- 
troduced, which  the  clerk  of  the  district  testified  contained  a 
true  record  of  the  meeting,  and  in  which  the  election  of  such  a 
committee  was  entered,  and  both  records  were  made  by  the 
clerk  soon  after  the  meeting,  from  loose  memoranda  put  on 
paper  at  the  time  of  the  meeting,  the  election  of  the  committee 
was  duly  proved.1  Where  the  clerk  pro  tern,  took  memoranda 
for  minutes,  and  made  up  his  record  after  he  had  qualified  as 
clerk,  about  two  months  later,  the  record  was  sustained,  and  in 
this  case  the  records  were  not  made  up  before  his  oath  of  office 
was  administered  ;2  a  delay  of  one  hour  and  five  minutes  is  not 
an  unreasonable  delay,  though  meetings  should  be  held  on  time.3 
Where  it  appears  from  the  records  that  the  meeting  was  held 
on  the  day  appointed,  the  presumption  of  law  is,  that  it  was 
held  in  a  suitable  time  in  the  day,  and  in  pursuance  of  the 
warning.8  Any  fact  which  should  be  a  matter  of  record  should 
be  proved  by  the  record.*  In  Iowa,  the  proceedings  of  a  school 
district  will  not  be  void,  nor  will  officers  subsequently  elected 
become  liable,  for  the  reason  that  their  predecessors  have  failed 
to  keep  the  records  properly.5  The  intention  of  a  corporation 
can  be  ascertained  only  by  the  language  of  its  recorded  acts ; 
and  neither  the  private  views  nor  the  public  declarations  of  in- 
dividual members  can  be  inquired  into.6 

§166.  Record. — To  show  that  additional  territory  had 
been  added,  the  record  showing  the  clerk  of  the  district  had  re- 
ceived from  the  town  clerk  a  document  prescribing  new  bound- 
aries for  the  district,  (town  meetings  having  power  to  prescribe 


i  Williams  v.  Lnnenburg,  21  Pick.  ( Mass.)  75. 
•  Bartlett  v.  Kinsley,  15  Conn.  327. 
•Sen,  Dial.  v.  Blakeslee,  13  Conn.  227. 


*Sherwin  v.  Bnebee,  17  Vt.  337. 
*Higgins  v.  Reed,  8  Clarke,  (Iowa) 
«Bartlett  v.  Kinsley,  15  Conn.  327. 


KULES   AND    REGULATIONS. 


197 


new  boundaries  to  school  districts,)  was  evidence.1  An  amend- 
ment of  the  records  of  a  school  district  should  not  be  made,  on 
trial  of  a  cause,  shaping  it  to  meet  a  decision  of  the  court.8  The 
records  of  a  school  district  are  evidence  of  its  votes  for  such 
district,  in  a  suit  to  which  it  is  a  party.3  By-laws  of  board  of 
education  are  repealed  by  subsequent  statute  that  conflicts  there- 
with.4 In  Mich,  parol  evidence  is  inadmissible  to  prove  a  resolu- 
tion of  the  district  board,  fixing  the  rate  of  tuition  of  non-resident 
pupils.5  A  clerk  of  a  district  cannot  amend  his  records  after 
his  successor  is  qualified.6 

§  167.  Rules  and  regulations. — (111.)  A  rule  barring  the 
doors  of  school-houses  against  little  children  coming  from  a 
great  distance,  in  the  winter,  for  being  a  few  minutes  tardy,  is 
unreasonable  and  unlawful,  and,  in  its  practical  operation,  is 
little  less  than  wanton  cruelty.7  The  officers  may  prescribe 
necessary  rules  for  classification  of  pupils,  as  to  studies  they  are 
following,  and  promotion,  but  cannot  expel  for  refusing  to  study 
a  required  branch  that  could  be  omitted  without  interfering 
with  the  classes  where  the  parent  demands  that  it  be  omitted  ;8 
and  where  trustees  refused  to  admit  pupil  to  high  school  unless 
he  complied  with  rules  as  to  course  of  studies,  the  request 
by  parent  as  to  excusing  him  from  grammar  recitals  should 
have  been  complied  with  ;8  where  book-keeping  was  not  one  of 
the  branches  required  by  law  but  the  board  were  authorized 
to  have  higher  branches  taught  than  those  enumerated,  and 
where  a  scholar  refused  to  pursue  that  study  and  was  ejected 
forcibly  from  the  building,  she  was  awarded  damages  ;9  a  rule 
suspending  pupils  for  absence  six  half-days  without  a  valid  ex- 


i Richardson  v.  Sheldon,  1  Finn.  ( Wis.T.)  625. 
SHadley  v.  Chamberlain,  11  Vt.  618. 
3 Sch.  Dist.  v.  Blakeslee.  13  Conn.  2?T. 
'People  v.  Van  Sic. en.  43  Hun  (  N.  Y.>  537. 
6  Thompson  v.  Sch.  Dist.  No.  6,  25  Mich.  483. 


«  Sch.  Dir.  v.  Atherton,  12  Mete.  (  Mass.)  105. 
Thompson  v.  Beaver,  63  III.  350. 
v.  People,  87  111.  303. 
.  Post,  79  111.  567. 


198  PUBLIC  SCHOOL  LAW. 

cuse  was  held  to  be  a  reasonable  rule.1  (Ind.)  A  student  is 
required  to  submit  to  any  proper  rule  necessary  for  the  good 
government  of  the  institution.2  (Iowa.)  If  it  is  necessary  for 
the  good  of  the  school  that  the  pupil  should  study  certain 
branches  that  the  parent  objects  to  his  pursuing,  the  teacher 
has  no  power  to  enforce  the  rule  of  study  by  beating  the  pupil, 
but  may  expel  or  suspend.3  Expelling  a  boy  from  school  be- 
cause he  accidentally  broke  a  window  playing  ball  and  did  not 
pay  for  it  as  required  by  a  rule  of  board  of  directors,  was  not 
upheld  by  the  courts.*  Where  a  pupil  was  suspended  for  being 
tardy,  it  was  held  that  rule  was  for  the  government  of  the  school, 
and  was  proper  and  reasonable  and  within  the  power  of  the  of- 
ficers to  enforce.5  (Me.)  Expelling  a  Catholic  scholar  for  not 
complying  with  a  rule  which  required  the  use  of  the  Bible  in 
the  school,  was  sustained,  and  the  court  held  that  it  was  a  proper 
text-book,  and  not  sectarian,  and  that  the  committee  had  the 
power  to  adopt  and  enforce  it,  the  action  was  by  the  scholar ; 
and  that  the  conscience  of  the  father  was  not  interfered 
with.6  (Mass.)  Regulations  forbidding  attendance  of  immoral 
or  licentious  persons  can  be  enforced,  although  the  conduct 
of  the  persons  may  be  proper  while  at  school.7  Where  a 
pupil  refused  to  obey  the  rule  made  by  the  committee,  that  the 
school  should  be  opened  with  prayer  and  reading  from  the 
Bible,  and  that  during  prayer  the  pupils  should  bow  their  heads, 
but  might  be  excused  at  request  of  parent,  and  a  pupil  was  ex- 
pelled for  refusing  and  his  parent  refused  to  request  his  being 
excused,  his  expulsion  was  sustained  by  the  courts.8  A  parent 
sued  a  city  for  damages  for  the  expulsion  of  his  child,  and  the 


1  Churchill  v.  Fewkes,  13  Brad.  R.  520. 

2  State  v.  White,  82  Ind.  286. 

*  State  v.  Mizner,  50  Iowa,  152. 

*  Perkins  v.  Directors,  56  Iowa,  479. 


^Bendick  v.  Babcock,  31  Iowa,  562. 
eDonahoe  v.  Richards,  38  Me.  379. 
7  Sherman  v.  Charlestown,  8  Cush.  160. 
sSpitler  v.  Woburn,  12  Allen,  127. 


RULES   AND   REGULATIONS.  199 

committee  had  the  sole  power  of  expulsion,  but  had  never 
acted,  (the  teacher  had  suspended  the  pupil  for  refusing  to  take 
a  whipping  for  disobedience):  the  court  held  he  should  have 
first  applied  to  the  committee  to  see  if  they  sustained  the  teacher, 
and  failing  to  prove  this  he  did  not  show  his  child  had  been 
expelled.1  Where  the  board  fails  to  record  the  rules  it  will  not 
render  them  void.2  Suspending  pupil  for  violating  rules  as  to 
tardiness,  was  sustained,  and  the  court  held  that  this  was  a 
reasonable  exercise  of  power  by  the  teacher.3  (Mo.)  Rules  be- 
yond the  power  of  board  to  make  will  not  be  enforced.*  A 
rule  suspending  pupils  absent  six  half-days  in  four  consecutive 
weeks  without  satisfactory  excuse  was  sustained.4  (N.  H.)  A 
teacher  not  having  a  license  required  one  of  the  scholars 
to  declaim,  and  on  refusing  obedience  to  the  rule  which 
was  made  by  the  teacher  was  ejected  from  the  building, 
although  the  parent  had  requested  the  omission  of  that 
branch.  The  teacher  was  sustained,  the  court  in  that  case 
refusing  to  follow  the  Wis.  authority.5  (Ohio.)  Where  a 
pupil  was  suspended  for  failing  to  observe  a  rule  adopted  by 
the  board  of  education  prescribing  rhetoric,  the  court  held  the 
rule  to  be  reasonable,  and  his  suspension  until  he  should  comply 
with  it  or  give  a  reasonable  excuse,  was  proper.6  (Pa.)  A  rule 
prohibiting  an  expelled  student  from  attending  public  exhibi- 
tions given  at  the  normal  schools  of  the  state  is  tyrannical,  and 
cannot  be  enforced  if  the  party  conducts  himself  properly  at  the 
exhibition.7  (Tenn.)  A  teacher  suspending  a  pupil  for  using 
tobacco  in  violation  of  rule  adopted  by  the  teacher,  the  directors 
objecting  to  that  rule  and  discharged  the  teacher,  the  court  up- 


1  Davis  v.  Boston,  133  Mass.  103. 
*  Russell  v.  Lynnfield,  116  Mass.  365. 
•Russell  v.  Lynnfield,  116  Mass.  366. 
4  King  v.  Jeff.  City  Sen.  Bd.,  71  Mo.  628. 


SKidder  v.  Chellis,  59  N.  H.  473. 

«Sewell  v.  Bd.,  29  Ohio  St.  89. 

» Hughes  v.  Goodell,  (Pa.)  3  Pitts  R.  264. 


200 


PUBLIC   SCHOOL   LAW. 


held  the  board,  they  having  the  power  to  suspend  scholars  by 
law,  the  teacher  in  Tenn.  only  having  power  of  temporary  sus- 
pension.1 (Vt.)  Where  Catholic  parents  requested  permission 
for  their  children  to  be  absent  on  Catholic  holidays,  the 
rule  of  the  committee  suspending  for  absence  was  sustained  ;2 
where  teacher  required  pupil  to  write  English  composition,  and 
suspended  for  not  complying,  the  rule  and  power  to  enforce  were 
sustained.3  (Wis.)  Where  parent  asked  teacher  to  excuse  pupil 
from  study  of  geography  and  teacher  punished  the  child  for 
complying  with  request  of  parent  and  refusing  to  pursue  that 
study,  the  court  held  she  exceeded  the  authority  given  her  by 
law  and  the  assault  on  the  child  was  unjustifiable.4 

§  168.  Site,  addition,  and  appeal. — The  authorities  may 
acquire  lands  adjoining  the  school-house  lot,  when  necessary 
for  an  extension  which  has  been  duly  voted.6  The  Ind.  statute 
authorizes  appeals  from  proceedings  by  trustees  to  condemn 
school-house  site,  but  in  proceedings  to  condemn  the  decision  of 
the  trustees  cannot  be  attacked.6  In  N.  H.,  on  appeal  to  county 
commissioners  as  to  location  of  school-house,  their  decision  is 
conclusive  as  to  location  for  five  years.7  In  Iowa,  where  the 
state  superintendent  on  appeal  grants  petition  to  district  directors 
for  removal  of  school-house,  his  decision  is  final,  and  mandamus 
will  lie  to  compel  the  removal.8  The  decision  of  the  commis- 
sioner, on  appeal,  is  final.  After  confirmation  by  supreme  court, 
another  site  cannot  be  chosen  except  by  new  proceedings.9  The 
jurisdiction  of  county  commissioners  to  hear  petition  from  voters 
in  district  appealing  from  location  of  school-house,  extends  to 
towns  in  which  the  district  system  has  been  abolished,  in  N.  H.10 


i Parker  v.  Sch.  Disk,  5  Lea  (Tenn.)  525. 
2Ferriter  v.  Tyler,  48  Vt.  444. 
3  Guernsey  v.  Pitkin,  32  Vt.  228. 
*  Morrow  v.  Wood,  25  Wis.  59. 
6Couzens  v.  Sch.  Disk,  67  Me.  280. 


eBraden  v.  McNutt,  (Ind.)  16  N.  E.  170. 
7Stickney  v.  Town  Oxford,  (N.  H.)  10  A.  117. 
8Newby  v.  Free,  (Iowa)  34  N.  W.  1(58. 
»Cottrell's  Appeal,  10  R.  I.  615. 
10  Adams  v.  State,  ( N.  H.)  18  A.  331. 


SITE,  CONTRACT. 


201 


§  169.  Site,  condemnation. — An  unqualified  refusal  to  sell 
land  selected  by  a  committee  as  the  location  of  a  school-house, 
would  be  a  sufficient  refusal  to  justify  the  selectmen  in  setting 
off  the  land  ;*  and  objections  to  the  persons  appointed,  if  known, 
must  be  made  before  the  hearing.1  Seven  days'  notice  in  writ- 
ing is  necessary  to  condemn,  when  district  fails  to  agree  and 
selectmen  locate  the  site  under  K.  S.,  ch.  23,  §  30,  and  act  1848, 
Mass.2  The  Pa.  act  1867,  providing  for  the  taking  of  land  for 
school-house  sites,  is  constitutional.3  Where  building  commit- 
tee of  selectmen  choose  a  site,  and  on  refusal  to  sell,  a  meeting 
was  called  to  authorize  the  selectmen  to  select  a  lot,  and  it  was 
voted  that  they  are  authorized  to  select  a  school-house  lot  from 
the  land  of  H.  heretofore  selected  by  the  town,  this  was  not 
sufficient  designation  under  act  1848,  Mass.*  In  B.  I.  the  ap- 
pointment of  persons  to  value,  or  a  tender  of  price  for  site  of 
school-house  before  a  vote  of  the  district,  is  ineffectual  to  pass 
title,  but  location  does  not  precede  vote  ;5  and  the  tender  of  price 
of  land  selected,  if  the  owner  lives  out  of  the  state,  may  some- 
times be  made  to  the  party  in  possession.6  A  petition  to  the 
county  commissioners  by  the  owner  of  land  taken  for  a  school- 
house,  for  increase  of  damages,  estops  him  from  an  action  for 
occupation  of  the  lot  on  the  ground  of  irregularities  in  condem- 
nation ;7  and  when  the  district  has  properly  designated  the  lot, 
and  applied  to  the  owner  to  sell  the  same,  and  he  has  refused, 
the  selectmen  may  appraise  the  damages  at  the  time  they  lay  out 
the  lot,  in  Me.8  The  township,  in  N.  H.,  should  be  made  a  party 
in  an  action  to  establish  location  of  school-house.9 

§  170.    Site,  contract. — A  contract  made  by  the  trustee  on 


iTrne  v.  Melvin,  43  N.  H.  503. 

*Scb.  Dist.  v.  Copeland,  2  Gray  (Mass.)  414. 

'Long  v.  Fuller,  68  Pa.  St.  170. 

*  Harris  v.  Marblehead,  10  Gray  (Mass.)  40. 

•^Howland  v.  Sch.  Dist.,  15  R.  I.  184. 


6 Gibbons  v.  East  Granville,  4  Allen  (Mass.) 

508. 

*  Jordon  v.  Haekell,  63  Me.  193. 
BCouzens  v.  Sch.  Dist.,  67  Me.  280. 
•Loverin  v.  Sch.  Dist.,  64  N.  H.  103. 


202 


PUBLIC   SCHOOL   LAW. 


the  authority  of  a  school  district,  to  accept  a  conveyance  of  land 
to  be  used  as  a  site  for  a  public  school,  that  the  district  should 
build  and  keep  in  repair  the  division  fence,  is  valid,  though 
made  before  any  tax  to  build  or  repair  the  fence  had  been  voted.1 
A  statutory  prohibition  against  board  of  education  buying  school- 
site  does  not  prohibit  a  lease  of  temporary  site.8  In  N.  H.  a 
location  made  by  a  committee  is  not  conclusive;  the  proper 
notice  of  a  location  to  be  given  of  a  hearing  before  a  commit- 
tee, to  individuals  and  to  the  district,  is  the  same  as  for  the  ser- 
vice of  process ;  and  a  selectman  cannot  act  in  the  appointment 
of  a  committee,  where  his  brother  is  a  party.8 

§  171.  Site,  conveyance. — The  grant  made  by  the  town 
of  Ipswich,  in  1650,  in  trust  for  the  use  of  a  school  in  that 
town,  conveyed  a  fee,  although  it  contained  no  words  of  limi- 
tation.* Where  a  site  is  bought  with  the  restriction  that  no 
building  should  be  erected  to  stand  in  front  of  the  line  of  the 
school-house  and  another  building,  and  the  deed  contained  the 
restriction  that  no  erections  should  be  made  upon  said  land  be- 
tween the  school-house  and  the  highway,  there  was  no  variance 
to  bar  a  recovery  for  the  price  ;6  and  one  restriction,  imposed 
by  the  plaintiffs  in  their  proposal,  was,  that  the  land  should  be 
kept  open ;  in  the  deed  it  was  expressed  that  the  land  should  re- 
main as  a  public  common,  and  in  the  declaration  the  restriction 
was  expressed  as  in  the  deed.  This  difference  constituted  no 
objection  to  the  plaintiff's  recovery.*  A  conveyance  of  land  to 
a  town  for  the  purpose  of  having  a  school-house  erected  and  a 
school  taught  therein,  for  the  benefit  of  the  youth  of  the  town,, 
for  a  term  specified,  imports  a  sufficient  consideration  ;7  and  an 


i  Albright  v.  Kiker,  22  Hun  (N.  T.)  367. 
SMillard  v.  Bd.  Ed.,  19  111.  App.  48. 
•True  v.  Melvin,  43  N.  H.  503. 
'Feoffees  Sch.  v.  Andrews,  8  Mete.  (Mass.)584. 


«Dix  v.  Sch.  Diet.,  22  Vt.  309. 

«Dixv.  Sch.  Dist.  No.  2  in  Wilmington,  22  Vt. 

309. 
7  Castleton  v.  Langdon,  19  Vt.  210. 


SITE,   ELECTION. 


203 


action  of  trespass  qua/re  clausum,  may  be  maintained  in  the 
name  of  the  town  j1  and  if  the  town  erects  upon  the  land  a 
school-house,  in  which  a  school  should  be  kept  for  a  reasonable 
portion  of  the  time,  it  will  not  forfeit  a  part  of  the  land, 
although  it  should  use  that  portion  of  it  not  wanted  for  the  ac- 
commodation of  the  school-house,  for  purposes  not  connected 
with  the  main  object  in  view,  as  if  it  should  lease  it  for  culti- 
vation, or  a  building  for  a  fire  engine,  or  hay-scales  should  be 
put  upon  it,  or  it  should  be  used  as  a  passage-way,  or  be  used 
for  the  purpose  of  accommodating  teams,  or  a  corner  of  a 
meeting-house  were  allowed  to  rest  upon  it,  without  dissent, 
or  a  room  in  the  same  building  occupied  as  a  school-house, 
should  be  finished  and  used  by  the  town  for  the  purpose  of 
holding  town  and  other  public  meeting ;  such  conveyances  are 
are  always  construed  liberally.1 

§  172.  Site,  election. — Under  the  N.  J.  act  of  1888,  author- 
izing vote  by  the  district  to  purchase  land  and  build  school- 
house,  the  trustees  must  first  designate  what  lands  are  to  be 
purchased,  and  this  is  to  be  approved  by  the  voters,  and  the 
notice  for  the  meeting  must  describe  the  lands.2  "Wagner's 
(Mo.)  Stat.  1244,  §  12,  construed  not  to  permit  the  directors  to 
fix  the  site  at  their  own  discretion.3  A  school  district  voted  to 
repair  its  school-house  and  to  buy  lands  enough  to  straighten 
the  line  west  of  the  school-house  this  was  a  sufficient  location 
to  give  the  county  commissioners  jurisdiction  of  a  petition  to 
change  the  location.*  By  Comp.  Stat.  Yt.,  ch.  20,  §  38,  the 
majority  vote  of  the  school  district  has  the  right  to  locate  a 
school-house.5  Under  B.  I.  Pub.  St.,  ch.  56,  §  5,  the  selection 


1  Castleton  v.  Langdon,  19  Vt.  210. 

2  State  v.  Trs.,  (N.  J.)  18  A.  683. 
•Seibert  T.  Botts,  57  Mo.  430. 


^Holbrook  v.  Faulkner,  55  N.  H.  311. 
« Bean  v.  Prud.  Comm.,  38  Vt.  177. 


204 


PUBLIC   SCHOOL   LAW. 


of  a  school-house  site  is  not  a  condition  precedent  to  vote  to 
build,  and  a  vote  to  build  on  that  lot  is  not  a  condition  pre- 
cedent to  condemnation.1  Under  the  vote  of  a  district,  request- 
ing the  selectmen  to  fix  the  location  of  their  school-house,  the 
action  of  the  selectmen  is  not  compulsory  on  the  members  of 
the  district.8  The  board  of  trustees  in  Dak.  has  no  power  to 
-acquire  a  school-house  site,  except  as  designated  by  the  voters 
of  the  district  at  a  district  meeting,  and  warrants  issued  therefor 
-are  void.3  Section  17  of  the  act  of  1856,  Conn.,  to  "provide 
suitable  school-rooms,"  does  not  qualify  the  law  which  requires 
a  vote  of  two-thirds  to  establish  or  change  the  site  of  a  school- 
house.4  Where  more  than  one-third  of  the  voters  of  a  school 
district  object,  by  their  votes,  to  the  place  selected  for  the  loca- 
tion of  the  school,  the  clerk  of  the  district  is  required,  by  Me. 
Rev.  Stat.,  ch.  11,  §  32,  to  make  a  record  of  such  fact.5  In  N.  Y. 
the  site  must  be  designated  by  the  inhabitants  in  a  district 
meeting,  and  such  power  cannot  be  delegated  to  trustees.6  The 
N.  J.  act  of  1880  requires  majority  vote  of  taxable  residents  of 
district  to  buy  land  for  school-house,  or  build,  and  §  86  of  school 
law  is  repealed  by  implication.7  Extra  rooms  cannot  be  rented 
and  used  by  board  of  directors  without  a  vote  of  the  district,  in 
Missouri.8 

§  173.  Site,  injunction. — The  removal  of  school-house  to 
another  site  before  proper  steps  required  have  been  taken,  will 
be  enjoined  at  the  suit  of  a  tax-payer  whose  taxes  will  be  in- 
creased thereby  ;9  but  a  private  person  cannot  prevent  removal 
of  school-house  unless  he  shows  special  damage  to  himself  ;10 
and  school  district  will  not  be  enjoined  from  erecting  school- 


iHowland  v.  Sch.  Dist.,  (R.  I.)  8  A.  337. 
sTozier  v.  Sch.  Dist.  No.  2,  39  Me.  556. 
8  Farmers  Bk.  v.  Sch.  Dist.,  6  Dak.  255. 
•*Colt  v.  Roberts,  28  Conn.  330. 
*  Norton  v.  Perry,  65  Me.  183. 


«Benjammv.  Hull,  17  Wend.  (N.  Y.)  437. 
"Point  P.  L.  Co.  v.  Sch.  Dist.,  47  N.  J. L.  235. 
s  Black  v.  Cornell,  30  Mo.  App.  641. 
«  Graves  v.  Jasper  Tp.,  ( S.  D.)  50  N.  W.  904. 
10  Parody  Y.  Sch.  Dist.,  15  Neb.  514. 


SITE,  PLACE. 


205 


house  on  a  certain  site,  at  instance  of  person  not  affected  ;J  and 
a  resident  tax-payer  cannot  sue  the  directors  for  illegal  location 
and  purchase  of  school-site  without  first  making  demand  on 
proper  parties  to  sue,  and  his  remedy  against  an  illegal  location 
is  by  appeal  rather  than  injunction.2  Discretion  allowed  offi- 
cers will  not  be  controlled  though  it  may  be  exercised  unwisely  ;s 
but  where  vote  of  electors  is  required  before  changing  site  or 
building  of  new  site,  an  attempt  to  act  without  vote  should  be 
enjoined.* 

§  174.  Site,  notice. — A  committee  to  locate  may  be  ap- 
pointed without  notice  to  other  parties.5  The  certificate  of  the 
officers  of  a  town,  of  their  determination  where  a  school-house 
is  to  be  placed,  is,  after  the  application,  notice  to  all  parties,  and 
a  hearing,  as  required  by  the  Me.  Rev.  Stat.,  ch.  11,  §  32,  and 
conclusive.8 

§  175.  Site,  officers. — When  location  of  a  school-house  by 
selectmen  is  returned  to  the  town  clerk  for  record,  no  subsequent 
neglect  of  the  town  clerk  to  make  a  due  record  will  affect  the 
validity  of  such  location  ;7  and  where  a  site  has  been  chosen,  ir- 
regularities of  the  clerk  or  omissions  in  describing  the  site 
selected  will  not  invalidate.8  Under  the  school  act  of  Ohio, 
Mch.  14,  1853,  the  township  board  of  education  has  the  power 
to  designate  the  particular  places  where  school-houses  in  sub- 
districts  should  be  built ;  and  the  powers  of  the  local  directors 
of  a  sub-district  are  to  be  exercised  in  subordination  to  the 
township  board  of  education.' 

§  176.  Site,  place. — The  trustees  of  a  district  were  liable  in 
trespass  for  assessing  and  trying  to  collect  a  tax  voted  to  raise 


i  Nixon  v.  Sch.  Dist.,  32  Kas.  510. 

»Ind.  Sch.  D.  v.  Gookin,  (Iowa)  34  N.  W.  174. 

*Witherop  v.  Titusville  Sch.  Bd.,  7  Pa.  Co. 

Ct.  Rep.  45. 
^Buchanan  v.Hannibal  Sch.  D.,  25  Mo.App.85. 


6  True  v.  Melvin,  43  N.  H.  503. 
"Morton  v.  Perry,  65  Me.  183. 
i  Converge  v.  Porter,  45  N.  H.  385. 
8Merritt  v.  Farriss,  22  111.  303. 
"Hughes  v.  Bd.  Ed.,  13  Ohio  St.  336. 


•206 


PUBLIC   SCHOOL   LAW. 


money  to  purchase  a  site  and  build  a  school-house  on  a  site  of 
different  location,  where  the  previous  consent  of  the  commis- 
sioners of  common  schools  had  not  been  obtained  to  change  the 
site.1  The  trustees  of  the  town  of  Poplar  Plains,  under  act 
Ky.  of  Feb.  28,  1860,  and  pursuant  to  vote  of  the  town,  sold  a 
lot  and  school-house,  the  title  to  which  was  in  the  trustees,  and 
invested  the  proceeds  in  the  purchase  of  a  seminary  lot  and 
buildings  just  outside  the  corporate  limits  of  the  town ;  they 
were  not  required  to  make  the  reinvestment  in  property  within 
the  corporate  limits  of  the  town,  and  after  acquiescence  for  sev- 
eral years,  the  trustees  were  not  personally  liable.8  If  a  loca- 
tion is  void,  by  reason  of  its  insufficient  and  defective  description, 
the  district  must  proceed  anew.8  The  municipal  officers  in  Me. 
have  ten  days  within  which  to  give  their  certificate  to  the  clerk 
of  the  district  of  their  location  of  the  place ;  they  may  change 
their  certificate,  and  agree  if  their  certificate  is  not  recorded,  if 
their  determination  is  duly  filed  within  ten  days.3  The  school 
inspectors  of  Peoria  have  power  to  maintain  a  school  in  a  house 
beyond  the  city  limits  for  children  living  within  them.* 

§  177.  Site,  sale. — Under  Pa.  act  of  1836,  whether  prop- 
erty is  any  longer  required  for  school  purposes  is  a  question 
within  the  discretion  of  the  school  directors.5  The  N.  H.  law 
of  1871,  providing  for  relocation  of  school-houses,  is  not  un- 
•constitutional.6 

§  178.  Site,  tax. — One  cannot  resist  a  school  tax  on  the 
ground  that  the  title  to  the  land  purchased  for  the  school  build- 
ing is  defective,  if  there  is  no  ouster  of  possession.7  In  N.  Y. 
>a  tax  to  build  may  be  collected  before  the  site  of  the  school 


i  Baker  v.  Freeman,  9  Wend.  ( N.  Y.) 
*  Samuels  v.  Trs.,  4  Bush  (Ky.)  252. 
3  Norton  v.  Perry,  65  Me.  183. 
•*  Grove  v.  Sen.  Insp.,  30  111.  533. 


BMcCullough  v.  Sch.  Dirs.,  11  Pa.  St.  476. 
«  Farmers'  Petition,  51  N.  H.  376. 
7  People  v.  Sisson,  98  HL  335. 


SITE,  TITLE.  207 


building  is  located  j1  but  in  Me.  a  tax  for  the  erection  of  a 
school-house  upon  a  lot  not  legally  designated  was  deemed  to 
be  for  an  illegal  purpose.2  By  act  Pa.  May  8,  1854,  §  33,  the 
board  of  directors  of  a  school  district  may  levy  a  special  tax 
for  purchasing  ground  and  erecting  school  buildings  thereon; 
and  this  power  is  given  to  boards  of  controllers  in  cities  and 
boroughs  where  the  school  property  is  vested  in  them,  and  in 
other  cases  to  the  board  of  directors.8 

§  179.  Site,  title. — A  school  may  be  taught  in  rented  build- 
ing instead  of  school-house,  where  the  directors  deem  it  advis- 
able.* The  designation,  "is  included  within  the  bounds  of  the 
survey  directed  to  be  run  by  §  1  of  act  of  1812,  as  well  as 
within  the  limits  of  the  town  of  St.  Louis  as  it  stood  incorpo- 
rated June  13, 1812,"  is  valid,  though  it  does  not  state  that  the 
land  thus  set  apart  "  is  or  ever  was,  in  whole  or  in  part,  a  town 
lot,  out-lot,  or  common  field-lot,  adjoining  or  belonging  to  said 
town."5  Where  the  equitable  title  is  in  the  school  -  district 
board,  a  contract  for  the  legal  title  is  valid.6  A  Writ  of  man- 
damus cannot  issue  to  compel  a  township  trustee  to  locate  and 
build  a  school-house  on  land  that  does  not  belong  to  the  town- 
ship, notwithstanding  the  county  examiner,  on  an  appeal  from 
decision  of  trustee,  has  required  him  to  erect  a  school-house 
on  said  land.7  In  an  action  by  one  of  a  building  committee 
against  the  district,  for  money  paid  out  by  him  for  the  district 
under  the  direction  of  the  building  committee,  the  fact  that  a 
perfect  title  to  the  land  had  not  been  secured  was  no  defense 
to  the  action  ;  and  a  ratification  of  the  acts  of  the  committee  in 
expending  more  money  than  they  were  authorized  to  expend 


iColton  v.  Beardsley,  38  Barb.  (N.  Y.)  29. 
2  Marble  T.  McKenney,  60  Me.  332. 
•Blair  T.  Boggs  Tp.  Sch.  Dist.,  31  Pa.  St.  274. 
4  Scripture  v.  Burns,  59  Iowa,  70. 


6Ki*sell  v.  St.  Louis  Pub.  Sch.,  16  Mo.  553. 
«  Connor  v.  Bd.  Ed.,  10  Minn.  439. 
7  Kooutz  y.  State,  44  Ind.  333. 


208  PUBLIC   SCHOOL   LAW. 

would  avail  as  between  the  parties,  although  such  ratification 
was  since  the  commencement  of  the  suit.1  A  payment  or 
tender  of  the  damages  after  the  school-house  is  built  on  land 
of  private  person  without  his  consent,  and  after  the  owner  of 
the  land  sues  in  an  action  of  trespass,  qu.  cl.  fr.  affords  no  jus- 
tification.2 A  location  of  a  site  is  not  void  for  inadvertently 
overlapping  part  of  a  public  way  ;s  but  a  board  of  education 
cannot  appropriate  a  public  square  of  a  city  for  a  school-house  ;* 
and  directors  authorized  to  purchase  land  and  build  a  school- 
house  thereon,  by  vote  of  district,  cannot  erect  the  building  on 
land  held  in  trust  for  county.5 

§  180.  Site,  trust. — A  reservation,  by  a  vendor,  of  certain 
land  for  a  school-house,  was  held  to  be  a  trust  for  the  benefit 
of  the  neighborhood ;  and  the  sale  as  his  individual  property, 
was  enjoined.6  Where  land  was  conveyed  to  school  trustees 
on  condition  that  it  should  revert  to  the  grantor,  if  it  should 
cease  to  be  used  for  school  purposes,  and  a  school -house  was 
erected  thereon  and  after  being  used  for  seven  years  for  a 
school,  the  failure  for  one  year  to  eject  an  intruder  does  not 
work  a  forfeiture  ;7  and  a  school-district  corporation  will  not 
lose  its  title,  in  N.  Y.,  to  land  by  non-user  for  a  time  less  than 
twenty  years.8 

§181.  Statute,  constitution.— The  Pa.  act  of  1873  for 
the  city  of  A.,  in  so  far  as  it  assumes  to  empower  the  mayor, 
etc.,  to  levy  a  tax  and  issue  bonds,  and  to  exempt  the  city  from 
county  taxation  for  public  schools,  contains  matter  not  in  the 
title,  and  is  unconstitutional  ;9  and  this  section  is  by  the  sub- 
sequent "act  to  amend,"  etc.,  "the  several  acts  granting 


i  Davis  v.  Sch.  Disk,  44  N.  H.  398. 
"Storer  v.  Hobbs,  52  Me.  144. 
« Jordan  v.  Heskell,  63  Me.  189. 
<51  Cal.  620. 
e  Appeal  of  Tarbell,  129  Pa.  St  146. 


•Hamner  v.  Sharp,  11  Heisk.  (Tenn.)  701. 
'Barber  v.  Sch.  Tr.,  51  111.  396. 
SRobie  v.  Sedgwick,  35  Barb.  (N.  Y.)  319. 
»Bd.  Pub.  Ed.  Americus  v.  Barlow,  74  Pa.  St. 


SUIT,  PARTIES.  209 


corporate  authority  to  the  city  of  A.,  repealed  through  incon- 
sistency.1 The  repealing  clause  of  §  1  of  Ohio  act  of  1852,  for 
the  organization  of  cities  and  incorporated  villages,  did  not 
abrogate  the  school  systems  nor  special  laws  then  existing.2 

§  182.  Suits,  district. — Individuals  cannot  as  such  defend 
actions  against  districts;8  and  a  school  district  in  Conn,  is 
liable  to  be  sued  ;*  but  in  1859,  school  districts  were  not  cor- 
porations, and  liable  to  be  sued  as  such,  in  Iowa.5  The  peti- 
tion in  a  suit  by  a  district  need  not  set  out  the  manner  of  its 
organization.6  When  right  of  appeal  exists,  the  circuit  court 
(111.)  will  not  review  by  certiorari  the  record  of  trustees  in  re- 
districting.7  Where  judgment  in  an  action  against  a  school  dis- 
trict is  obtained  by  fraud  of  plaintiff  and  one  of  the  trustees, 
the  court  may  set  aside  the  same,  and  allow  an  answer  to  be 
filed.8  Justices  of  peace,  in  Kas.,  have  not  jurisdiction  of  suit 
against  school  district,  when  amount  exceeds  $100.9  A  di- 
rector, in  Wis.,  can  recover  from  the  district  the  expenses  in 
defending  a  suit  against  the  district  ;10  but  boards  of  education 
cannot  use  district  funds  to  defend  individual  lawsuits  occur- 
ring by  reason  of  the  members  charging  that  bidders  on  work 
had  cheated  the  district.11  The  school  directors  of  a  district 
should  sue  in  their  official  capacity  for  the  district.12  School 
directors  in  occupancy  of  a  school-house  may  maintain  trespass 
for  breaking  and  entering  the  same,  although  the  legal  title  is 
vested  in  the  trustees  of  the  school.18  A  district  may  submit 
differences  between  it  and  its  treasurer  to  arbitrators.1* 

§  183.    Suit,   parties. — The   school   trustees   and   not   the 


iBd.  Ed.  Americue  v.  Barlow,  74  Pa.  St.  232. 
«Blanchard  v.  Bissell,  11  Ohio  St.  96. 
» Lane  v.  Sch.  Dist.,  10  Mete.  (Mass.)  462. 
^McLoud  v.  Selby,  10  Conn.  390. 
6Runyan  v.  Sch.  Dist.,  12  Iowa,  184. 
"Port  Dodge  v.  Wahkansa,  15  Iowa,  434. 
7 Trustees  v.  Shepherd,  (111.)  28  N.  E.  1073. 

—  14 


8  Sturm  v.  Sch.  D.,  45  Minn.  88 ;  47  N.  W.  462. 

9  Jones  v.  Sch.  Dist.,  8  Kas.  362. 
N>Fobes  v.  Sch.  Dist.,  10  Wis.  117. 

"  Hotchkiss  v.  Plunkett,  60  Conn.  229. 
"Kingsley  v.  Sch.  Dirs.,  2  Pa.  St.  28. 
"Alderman  v.  Scb.  Dire.,  91  111.  179. 
"Walnut  Dist.  v.  Rankin,  70  Iowa,  65. 


210  PUBLIC   SCHOOL  LAW. 

school  directors  should  sue  to  compel  conveyance  in  an  action 
for  specific  performance.1  Where  a  suit  is  instituted  in  the  in- 
dividual names  of  school  directors  for  a  matter  in  which  they 
are  only  interested  officially,  the  title  of  the  cause  should  be 
amended  by  striking  out  the  individual  names  of  the  directors, 
and  substituting  their  corporate  name.8  A  suit  may  be  main- 
tained in  the  name  of  the  successor  of  a  school  commissioner, 
upon  a  note  made  to  the  latter  under  the  111.  act  Feb.  26, 1841.3 
An  action  to  recover  for  materials  and  services  in  the  erection 
of  a  school-house,  under  the  employment  of  the  school  trustees 
of  a  city,  should  be  brought,  not  against  such  trustees,  but 
against  the  school  corporation,  by  the  name  and  style  of  "The 

School  City  of ,"  filling  the  blank  with  the  name  of  the 

city.*  A  suit  to  set  aside  a  contract  for  the  building  of  a  school- 
house  and  to  enjoin  the  doing  of  the  work  on  the  ground  of 
fraud  on  the  part  of  the  township  trustee  in  making  the  con- 
tract, is  properly  brought  in  the  name  of  the  state  for  the  use 
of  the  township,  in  Ind.6 

§  184.  Suit,  party. — Under  the  Ky.  act  of  1871,  requiring 
the  commissioner  to  collect  and  pay  over  to  the  "  trustees  "  of 
the  districts  in  proportion  to  the  amount  they  are  entitled  to,  for 
the  use  and  benefit  of  the  teachers  thereof,  on  his  default  the 
trustees  of  each  district  in  the  county  have  a  separate  cause  of 
action  against  him  and  his  sureties,  for  the  teachers'  benefit.6 
School  districts  may  appoint  and  instruct  agents  to  prosecute 
and  defend,  or  to  withdraw  defenses  and  confess  judgment  ;7 
but  a  school  district,  in  N.  H.,  cannot  sue  in  assumpsit  the  pru- 
dential committee  of  the  district,  to  recover  the  balance  of  the 


i  Wilson  v.  Sch.  Biro.,  81  HI.  181. 
»Shoudy  v.  Sch.  Dirs.,  83  HI.  290. 
•Manlove  v.  McHatton,  5  111.  (4  Scan.)  95. 
<  Sims  v.  McClure,  52  Ind.  267. 


estate  v.  Earhart,  97  Ind.  119. 

8  Hammond  v.  Crawford,  9  Bush  (Ky.)  75. 

fDenniston  v.  Sch.  Dist.,  17  N.  H. 


y. 
492. 


SUIT,  PARTY.  211 


school-money  raised  by  the  town,  assigned  by  the  selectmen  and 
paid  to  the  committee.1  The  trustees  of  the  schools  of  the  town- 
ship may  sue  in  equity  in  matters  affecting  lands  held  by  state 
for  township  common  schools  ;a  and  a  suit  may  be  instituted  by 
the  state  on  the  relation  of  the  board  of  commissioners  for  the 
recovery  of  congressional  school  funds.8  In  a  suit  on  a  bond 
of  an  ex-school  commissioner  for  not  paying  over  the  funds  in 
his  hands,  the  successor  of  such  ex-school  commissioners  should 
be  the  relator.*  In  Ind.,  under  act  of  1838,  the  treasurer  of  a 
district  could  not  sue  in  his  own  name  for  money  due  to  the 
district.6  The  county  auditor  is  a  proper  relator  in  a  suit  to 
collect  money  loaned  by  the  county  auditor,  belonging  to  school 
fund.6  A  suit  for  teachers'  wages  must  be  brought  against  the 
district  by  its  corporate  name  and  not  against  the  trustees  as 
such.7  The  school  commissioners  of  the  townships  of  Ala.  may 
sue  as  such,  and  the  suit  may  be  styled  school  commissioners 
of  the  township,  giving  number  and  range.8  One  commissioner, 
as  such,  cannot  recover  from  another  the  money  belonging  to 
the  school  fund,  in  his  hands  ;9  but  any  legal  voters  of  the  town- 
ship, in  Ala.,  may  sue  school  commissioner  for  funds  in  his 
hands  which  he  fails  to  pay  over  as  directed  by  law.'  The 
board  of  education  of  Troy  cannot  aid  the  payee,  the  chamber- 
lain, in  collecting  a  draft  drawn  by  the  board  for  school  expenses, 
and  not  countersigned  by  the  comptroller  nor  audited  by  the 
common  council.10 

§  185.    Suit,  party. — The  director  of  a  district,  under  Neb. 
G.  S.  968,  may  bring  an  action  for  the  price  of  bonds  sold  by 


i  Sch.  Dist.  v.  Estj,  16  N.  H.  146. 

•Moore  v.  Sch.  Trs.,  19  111.  83. 

•Groves  T.  State,  9  Ind.  200. 

*  State  v.  Grant,  7  Blackf.  (Ind.)  71;  Wright 

v.  State,  7  Blackf.  (Ind.)  63. 
» Crawford  v.  Dean,  6  Blackf .  (Ind.)  181. 


eScotten  v.  State,  51  Ind.  52. 

TSproul  v.  Smith,  40  N.  J.  L.  314. 

8  Sch.  Comm'rs  v.  Dean,  2  Stew.  &  P.  (Ala.) 

190. 

•Burns  T.  Minter,  12  Ala.  316. 
1°  Johnson  v.  Troy,  19  Hun  (N.  Y.)  204. 


212 


PUBLIC  SCHOOL   LAW. 


that  district.1  In  1858,  in  Oreg.,  a  suit  to  enforce  the  obliga- 
tion of  a  note  and  mortgage  given  for  a  loan  of  school  funds 
should  be  brought  in  the  name  of  county  treasurer.8  A  suit  to 
recover  a  fund  belonging  to  the  county  school  board  must  be 
brought  in  its  corporate  name,  in  Ya.3  School  board  cannot, 
after  a  verdict,  object  to  the  regularity  of  the  proceeding  on 
account  of  appearance,  by  consent  of  the  board,  to  the  action.* 
The  provisions  of  Wis.  Laws  1869,  ch.  182,  make  a  town  board 
organized  under  its  provisions  the  legal  successor  of  the  previous 
board,  and  authorize  it  to  sue  for  moneys  due  to  the  former 
board.5  The  district  board  have  no  authority  to  take  the  de- 
fense of  a  suit  from  the  assessor;  the  control  of  suits  is  not 
among  the  powers  of  duties  confided  by  the  statutes  to  the  dis- 
trict board,  in  Mich.  (C.  L.  1871,  §  3613.) 6  In  Miss,  the  county 
superintendents  succeeded,  under  the  new  constitution  and  the 
laws  of  1870,  to  the  rights  and  powers  of  the  former  boards  of 
trustees,  and  should  sue  for  moneys  due  to  such  trustees  for 
lands  sold  by  them.7  Under  N.  H.  K.  S.,  chs.  70,  73,  a  school 
district  may  sue  a  prudential  committee  after  its  term  of  office 
for  neglecting  to  appropriate  to  the  support  of  schools  money 
received  by  him  belonging  to  that  district.8  Some  of  the  inhabit- 
ants of  a  district  may,  in  behalf  of  themselves  and  others,  sue 
to  test  the  constitutionality  of  the  law  creating  the  district,  and 
the  legality  of  the  proceedings  of  its  officers  under  it  ;9  but  one 
tax-payer  cannot  sue  in  behalf  of  himself  and  the  others  to  re- 
strain the  sale  of  their  real  estate  for  the  purpose  of  collecting 
a  delinquent  tax  assessed  to  pay  certain  judgments  against  the 
district,  on  the  ground  that  the  judgments  were  obtained  on 


iBowen  v.  Sch.  Diet.,  10  Neb.  265. 
2  Alexander  v.  Knox,  6  Sawyer  C.  Ct.  54. 
8  Stewart  v.  Thornton,  75  Va.  215. 
*  Thompson  v.  Sch.  Diet.,  71  Mo.  495. 
•Sch.  Dirs.  Sigel  v.  Coe,  40  Wis.  103. 


6  Sch.  Dist.  v.  Wing,  30  Mich.  351. 
f  Simmons  v.  Holmes,  49  Miss.  134. 
8  Sch.  Dist.  v.  Sherburne,  48  N.  H.  52. 
'Bull  v.  Read,  13  Gratt.  ( Va.)  78. 


SUIT,  PARTY. 


213 


illegal  and  void  school  orders,  etc.  Each  tax-payer  must  bring 
his  several  action ;  *  and  the  owners  of  the  several  judgments 
sought  to  be  declared  void  should  all  be  made  defendants.1 

§  186.  Suit,  party. — Prudential  committees  of  themselves 
cannot  sue ;  and  the  vote  of  a  district  to  stop  an  action  does 
not  render  it  liable  for  prior  expenses  in  prosecuting  it  without 
authority.2  The  answer  by  clerk  and  director  of  school  district 
was  held  to  be  the  answer  of  district.3  In  Yt.  the  district  alone, 
and  not  inhabitants,  can  bring  action  of  trespass  qua/re  cloMSum 
fregit.*'  Where  a  suit  was  brought  against  a  school  district  for 
money  borrowed  by  them  to  raise  money  for  the  township  to 
pay  bounties,  the  record  might  be  amended  by  substituting  the 
township.5  An  incorporated  town,  sued  as  a  school  corpora- 
tion, may  be  designated  either  in  the  title  of  the  action  as  a 
school  corporation,  or  in  the  complaint  by  an  allegation  of  that 
fact.6  A  complaint  cannot  be  brought  against  the  trustee  of  a 
civil  township  to  compel  him,  as  such,  to  erect  a  school-house 
within  its  territorial  limits;  it  must  be  against  the  trustee  of 
the  school  township.7  The  board  of  trustees  of  the  normal 
school  at  Oskaloosa,  Iowa,  organized  under  act  of  Jan.  15, 
1849,  was  not  a  body  capable  of  suing  or  of  being  sued.8  In 
an  action  on  a  school  order  of  a  district  township  which  has 
been  subsequently  reorganized  into  independent  districts,  the 
court  may  render  judgment  against  the  several  independent 
districts,  and  issue  a  mandamus  commanding  the  directors  to 
assemble  and  apportion  the  same  among  the  several  judgment 
debtors;9  but  either  of  the  districts  may  maintain  an  action 
against  the  others  for  contribution  if  the  apportionment  is  erro- 


iNewcomb  v.  Horton,  18  Wis.  566. 
2Burges8  v.  Sch.  Diet.,  100  Mass.  132. 
8  Sch.  Dist.  r.  Carson,  10  Kas.  238. 
<  Chaplin  v.  Hill,  24  Vt.  528. 
6  Heidelberg  v.  Horst,  62  Pa.  St.  301. 


'Noblesville  v.  McFarland,  57  Ind.  335. 

7  Hornby  v.  State,  69  Ind.  102. 

8  Drake  v.  Bd.  Trs.,  11  Iowa,  54. 

9  Asbury  Ind.  Sch.  Diet.  v.  Dubuque  Co.  Dist. 

Ct.,  48  Iowa,  182. 


PUBLIC   SCHOOL   LAW. 


neous.1  The  president  of  the  board  of  directors  of  a  school 
district,  in  absence  of  statute  otherwise,  has  authority  to  receive 
service  of  process  in  a  suit  against  the  school  district.8  An 
action  prosecuted  by  superintendent  of  education  for  La.  must 
be  prosecuted  by  attorney  general  or  district  attorney,  or  it 
should  be  dismissed.8  The  board  of  trustees  of  schools  under 
111.  Laws  1865,  §  39,  can  alone  maintain  an  action  for  a  trespass 
thereon,  although  not  themselves  in  actual  occupancy.* 

§  187.  Superintendent  public  instruction. — Advice  of 
state  superintendent  is  no  defense  for  unlawful  act  of  trustee 
depositing  money  in  bank.6  The  law  of  Wis.,  giving  state 
superintendent  jurisdiction  of  appeal  from  division  of  districts 
on  decision  of  town  boards  is  valid ;'  and  he  may  make  such 
rules  for  hearing  of  oause  before  him  as  to  him  may  seem 
proper,  defining  the  manner  of  presenting  the  case,  and  requir- 
ing written  briefs  and  refusing  oral  argument,  when  the  statute 
does  not  otherwise  direct  ;6  and  the  state  superintendent  of  Ind. 
has  jurisdiction  of  appeal  on  location  of  site  under  laws  of 
1855. 7  The  decisions  of  a  state  superintendent  are  entitled  to 
much  weight  ;8  and  his  decision  on  appeal  annulling  certificate 
of  teacher  for  cause  is  valid  and  final.9  The  state  superintend- 
ent in  La.  may  consider  payments  erroneously  made  when  he 
makes  a  proper  apportionment.10  The  state  superintendent  of 
N.  Y.  cannot  determine  appeal  from  apportionment  by  board  of 
town  auditors,  (under  acts  1864  and  1870.)11  Where  a  trustee 
had  brought  a  proceeding  to  compel  the  managers  of  a  normal 
school  to  pay  certain  moneys  to  teacher  employed  by  the  trus- 


i  Kennedy  v.  Derby  Grange  Ind.  Sch.  Diet.,  48 

Iowa.  189. 

«Carr  v.  Sch.  Disk,  42  Mo.  App.  154. 
8  Fay  v.  Jumel,  35  La.  Ann.  368. 
*  Barber  v.  Sch.  Trg.,  51  111.  396. 
'IngliB  v.  State,  61  Ind.  212. 


estate  v.  Whitford,  54  Wis.  150. 

*  State  v.  Custer,  11  Ind.  210. 

8  State  v.  Burton,  45  Wis.  150. 

» People  v.  Collins,  34  How.  (N.  Y.)  336. 
™  State  v.  Fay,  36  La.  Ann.  241. 
"People  v.  Bd.,  27  (N.  Y.)  N.  E.  968. 


SUPERINTENDENT  PUBLIC  INSTRUCTION.  215 

tee,  the  refusal  of  the  trustee  to  abandon  such  proceeding  when 
requested  by  state  superintendent,  justified  his  removal  by  the 
state  superintendent,  under  L.  N.  Y.  1864,  ch.  555.1  The  terri- 
torial superintendent  of  Utah  is  appointed  by  the  governor 
under  the  organic  act.2  The  superintendent  of  public  instruc- 
tion may  correct  mistakes  in  his  rulings  if  rights  of  other  parties 
do  not  intervene.3 

§  188.  Superintendent  public  instruction. — In  the  case 
of  People  v.  Draper,  18  N.  Y.  S.  282,  it  was  held :  "Removal  of 
School  Trustee — Powers  of  State  Superintendent. — Where  the 
return  of  a  trustee  of  a  school  district  to  an  order  made  by  the 
state  superintendent  of  public  instruction,  requiring  him  to 
show  cause  why  he  should  not  be  removed  from  his  office, 
admitted  that  he  had  neglected  and  refused  to  comply  with 
and  had  violated  certain  orders  of  the  superintendent,  he  was 
properly  removed  from  his  office,  under  Laws  1864,  ch.  555, 
§  18,  authorizing  such  removal  in  case  of  the  willful  disobedi- 
ence of  any  decision  or  order  of  the  superintendent  on  the  part 
of  the  trustee.  The  question  whether  or  not  the  trustee  should 
discontinue  a  proceeding  which  he  had  brought  against  the 
local  board  of  managers  of  a  normal  school  to  compel  them  to 
pay  over  certain  public  school-moneys  they  had  received,  to 
teachers  employed  by  the  trustee,  was  one  upon  which  the  de- 
cision of  the  superintendent  was  conclusive ;  and  the  refusal  of 
the  trustee  to  abandon  such  proceedings,  when  directed  so  to  do 
by  the  superintendent,  constituted  willful  disobedience,  justify- 
ing his  removal.  .  .  .  The  return  of  the  defendant  is  con- 
clusive as  to  the  facts  therein  set  forth.  (People  v.  Fire  Comm'rs, 
73  N.  Y.  437.)  That  return  set  forth  that  the  relator  appeared 

i People  v.  Draper,  18  N.  Y.  S.  282.  I    'Desmond  v.  Ind.  S.  D.,  (Iowa)  32  N.  W.  6. 

2 Williams  v.  Clayton,  (Utah)  21  P.  398. 


216  PUBLIC  SCHOOL  LAW. 

in  person  and  by  counsel  before  the  defendant  on  the  return- 
day  of  the  order  hereinbefore  referred  to,  and  by  the  return 
and  by  the  statement  of  his  counsel  admitted  that  he  had  vio- 
lated that  and  a  previous  order  of  the  superintendent,  and  had 
neglected  and  refused  to  comply  with  the  orders  of  the  super- 
intendent ;  and  that  he  had  advised  teachers  to  commence  suits 
against  the  district  for  their  wages,  instead  of  levying  a  tax  to 
raise  the  money  to  pay  them,  as  the  superintendent  had  ordered 
him  to  do.  As  above  stated,  the  facts  stated  in  the  return  are 
conclusive  upon  the  court  here ;  and  these  facts,  being  true, 
abundantly  justified  the  defendant  in  removing  the  relator  from 
office.  The  proceeding  was  perhaps  summary,  but  the  facts 
were  admitted ;  there  was  no  occasion  for  proof. 

"  But  it  is  claimed  that  there  are  facts  stated  in  the  affidavit 
upon  which  the  writ  was  issued  which  are  not  denied  in  the  re- 
turn, and  therefore  the  court  may  consider  them,  under  the  case 
of  People  v.  Commissioners  Dept.  Fire  and  Buildings,  106 
K  Y.  64, 12  N.  E.  Eep.  641.  The  claim  of  the  relator  is  that 
the  real  reason  the  defendant  removed  the  relator  was  that  he 
refused  to  discontinue  a  proceeding  he  had  brought  to  compel 
the  local  board  of  managers  of  the  normal  school  at  New  Paltz 
to  pay  over  the  public  school-moneys  they  had  received  to  be 
paid  to  the  teachers  employed  by  the  relator.  Even  if  that 
were  so,  I  see  no  reason  to  reverse  the  order  of  the  superin- 
tendent. He  had  made  a  decision  of  that  question  himself.  It 
was  in  a  matter  over  which  he  had  jurisdiction.  He  also  there 
and  then  made  a  decision  in  regard  to  the  matter,  and  it  was  in 
a  matter  where  the  statute  made  his  decision  conclusive.  The 
conduct  of  the  trustee  as  to  school  matters  was  also  subject  to 
his  supervision  and  control.  He  then  and  there  made  an  order, 


SUPERINTENDENT,   COUNTY.  217 

which  he  had  a  right  to  make,  directing  the  relator  to  abandon 
his  proceedings  against  the  local  board  of  managers  of  the 
normal  school.  The  relator  then  and  there  refused  to  abandon 
the  proceedings,  and  expressly  announced,  by  his  counsel  present 
with  him,  his  intention  of  continuing  such  proceedings.  This,  I 
think,  constituted  a  willful  disobedience  of  an  order  or  decision 
of  the  superintendent,  within  the  meaning  of  the  statute. 
•'Willful,'  I  think,  in  this  statute,  means  intentional,  (Anderson  v. 
Howe,  116  N.  Y.  336,  22  N.  E.  Rep.  695  ;)  and  the  relator  cer- 
tainly intended  to  disobey  the  defendant's  order.  It  was  not  a 
case  of  neglect,  omission,  or  misapprehension,  but  of  absolute 
refusal,  and  an  announcement  of  an  intention  of  doing  directly 
the  reverse  of  what  he  was  ordered  to  do.  The  writ  should  be 
quashed,  and  the  determination  of  the  defendant  affirmed,  with 
$50  costs  and  printing  disbursements." 

§  189.  Superintendent,  county. — Where  the  rights  of  a 
citizen  are  involved  in  matters  required  to  be  submitted  to  the 
county  superintendent  on  appeal,  the  court  may  determine 
whether  the  exercise  of  such  authority  is  lawful.1  In  Neb.  the 
county  superintendent  must  apportion  the  fund  before  the 
county  treasurer  can  pay  out  credits  of  the  county  school  fund.8 
The  county  superintendent  may  be  compelled  to  perform  his 
duty  by  mandamus;3  and  in  Ind.  he  must  execute  a  special 
bond  under  the  text-book  law.*  In  Iowa  he  cannot  recover 
compensation  for  examining  teachers  at  any  other  than  at  the 
time  required  by  law  ;5  and  his  salary  may  be  regulated  in  Tenn., 
under  acts  1873,  by  county  court.6  A  vote  by  township  trustee 
for  himself  for  the  office  of  county  superintendent  is  void,  and 

i  Perkins  v.  Dirs.,  56  Iowa,  476.  I    *Knox  Co.  v.  Johnson,  24  N.  E.  148. 

*  Donnelly  v.  Duras,  11  Neb.  283.  6Farrell  v.  Webster  Co.,  49  Iowa,  245. 

*  Brown  v.  Nash,  1  Wy.  Ter.  85.  |    «Haile  v.  Young,  6  Lea  (Tenn.)  501. 


218 


PUBLIC   SCHOOL   LAW. 


contrary  to  public  policy.1  The  Miss,  act  providing  for  election 
of  county  superintendents  in  only  a  part  of  the  state,  is  not 
void.2  Discretion  of,  cannot  be  controlled  by  courts ; 8  but  he 
has  only  such  powers  as  are  given  by  statute  ;*  and  when  he  is 
dismissed  from  office  and  appeals,  he  cannot  act  pending  appeal.6 
Trustees,  in  Ind.,  should  appoint  superintendent  on  the  day  fixed 
by  law,  or  adjourn  from  day  to  day.6  In  that  state,  to  be  eligi- 
ble for  county  superintendent,  he  must  have  been  an  inhabitant 
of  the  county  one  year  prior  to  appointment.7  If  county  judge 
refuses  to  permit  school  commissioner  to  qualify,  he  may  be 
compelled  to  by  mandamus.8  Appeals  on  school  questions  in 
N.  J.  are  to  the  county  superintendent,9  but  in  Ind.  no  appeal 
lies  from  action  of  trustee  contracting  or  dismissing  teacher  in 
city  or  town  ;10  and  he  cannot  compel  the  erection  of  a  school 
building  on  land  not  owned  by  township.11  He  is  not  liable  in 
damages  for  changing  district  on  proper  petition.18  The  election 
of  superintendent  by  town  school  committee  may  be  reconsid- 
ered before  he  has  been  informed  of  his  election.13  An  officer 
ostensibly  a  principal,  cannot  be  employed  by  board  directors 
in  Pa.,  whose  duties  are  same  as  district  superintendent.14  Un- 
der N.  J.  Rev.,  p.  1071,  a  dispute  over  election  of  a  trustee 
may  be  submitted  to  county  superintendent  for  opinion,  but  the 
state  superintendent  is  to  try  and  decide  the  matter  in  dispute.1* 
The  failure  of  school  superintendent  to  give  bond,  under  Ind. 
act  March  2,  1889,  will  not  per  se  forfeit  the  office.16 
§190.  Superintendent,  county.  —  Although  the  county 


^Hornung  v.  State,  116  Ind.  458. 
«  Wynn  v.  State,  ( Miss.)  7  So.  353. 
SBrmsinore  v.  Cotthtfchflm,  11  Ky.  L.  R.  486; 

Bailey  v.  Ewart,  52  Iowa,  111. 
*Ratcliff  v.  Faris,  6  Neb.  539. 
6 Walls  v.  Palmer,  64  Iiid.  493;  Matthews  v. 

Chase,  41  Ind.  357. 
•  State  v.   Harrison,  67  Ind.  71;    Sackett  v. 

State,  74  Ind.  487. 
'State  v.  Kilroy,  86  Ind.  118. 


SGreenup  Co.  Ct.  v.  Clifton,  5  Ky.  L.  R.  241. 

9  State  v.  Gloucester  City,  45  N.  J.  L.  100. 
icCrawfordsville  v.  Hays,  42  Ind.  206. 
"Kooniz  v.  State,  44  Ind.  323. 
"Sch.  Dist.  v.  Wheeler.  25  Neb.  199;  Cowles- 

v.  Sch.  Diet.,  37  N.  W.  (Neo.)  493. 
"Wood  v.  Cutter,  138  Maes.  149. 
"Delano  Land  Co.'s  Appeal,  103  Pa.  St.  347. 
is  State  v.  Albertson,  (N.  J.)  22  A.  1083. 
"Knox  Co.  v.  Johnson,  (Ind.)  24  N.  E.  148. 


SUPERINTENDENT  OF  SCHOOLS.  219< 

auditor  is  authorized,  in  Ind.,  to  cast  a  vote  for  county  superin- 
tendent in  case  of  a  tie,  jet  he  cannot  vote  on  a  resolution  to 
change  vote  by  ballot  to  yea-and-nay  vote,  and  cannot  vote 
when  half  the  trustees  vote  for  one  and  the  other  half  vote 
blank  or  for  a  fictitious  person.1  Where  superintendent  of 
public  instruction  was  authorized  to  remove  any  county  super- 
intendent "whenever  in  his  opinion  the  interests  of  public  edu- 
cation demanded  such  removal,"  no  notice  need  be  given  or 
charges  made,  and  a  removal  by  him  and  appointment  of  an- 
other to  fill  vacancy  will  be  upheld.2  The  action  of  the  county 
superintendent  in  regard  to  changing  boundaries  is  discretion- 
ary, from  which  an  appeal  will  lie ;  but  his  judgment  cannot  be 
controlled  by  mandamus,3  as  courts  are  not  disposed  to  inter- 
fere with  the  exercise  of  mere  discretionary  authority.*  A 
school  board  may  employ  a  superintendent  whose  term  of 
office  does  not  begin  until  after  some  of  the  members  of  the 
board  go  out  of  office  ;5  and  the  Ind.  statutes  do  not  limit  the 
board  of  school  trustees,  in  contracting  with  superintendent,  as 
to  the  time  the  board  shall  continue  in  office.6  A  county  su- 
perintendent should  keep  his  accounts  itemized.7  The  board  of 
directors  of  public  schools  in  the  city  of  Olney,  111.,  were  re- 
quired to  establish  and  keep  up  a  system  of  graded  schools  in 
the  city;  by  necessary  implication  from  the  duties  imposed 
upon  it,  the  board  had  authority  to  appoint  a  superintendent.8 

§  191.  Superintendent  of  schools. — In  the  case  of  Davis 
v.  School  District  No.  1,  of  the  City  and  Towmhip  of  Niles, 
45  N.  W.  Eep.  (Mich.)  989,  it  was  held,  Cahill,  J. :  "Under 


i State  v.  Edwards,  (Ind.)  16  N.  E.  627. 
2  State  v.  Shaver,  54  Ala.  193. 
•State  v.  Clary,  25  Neb.  403. 
*  Smith  v.  Comm'rs,  10  Col.  17. 


SReubelt  v.  Noblesville,  106  Ind.  480;  Wait  v. 
Ray,  67  N.  Y.  38;  Tappan  v.  Sch.  Diet.,  44 
Mich.  500;  Webster  v.  Sch.  Diet.,  16  Wis. 
337;  Gates  v.  Sch.  Dist.,  58  Ark.  470. 

SReubelt  v.  Noblesville,  106  Ind.  478. 

7  Smith  v.  Comm'rs,  10  Col.  17. 

8  Spring  v.  Wright,  63  111.  90. 


220  PUBLIC   SCHOOL  LAW. 

How.  St.  Mich.,  §5134,  par.  5,  authorizing  the  board  of  school 
trustees  to  employ  such  officers  and  servants  as  may  be  neces- 
sary for  the  management  of  the  schools  and  the  school  prop- 
erty, to  fix  their  compensation  and  prescribe  their  duties,  one 
-employed  as  a  superintendent,  not  being  a  teacher,  is  not  re- 
•quired  to  have  the  certificate  required  by  law  to  qualify  one  for 
•employment  as  a  teacher.  .  .  .  In  an  action  for  compen- 
sation by  one  employed  by  a  director  as  superintendent,  it  is 
^rror  to  exclude  evidence  that  the  board  of  trustees,  which 
•alone  has  authority  to  make  a  contract  for  such  employment, 
Jmew  of  his  services  in  that  behalf  and  acccepted  them.  .  .  . 
The  plaintiff  sued  the  defendant,  being  a  graded-school  district, 
to  recover  for  services  rendered  during  the  months  of  April, 
May,  and  June,  18 87,  as  superintendent.  Paragraph  5  of 
§  5134  authorizes  the  board  of  trustees  to  employ  such  offi- 
cers and  servants  as  may  be  necessary  for  the  management  of 
the  schools  and  the  school  property,  prescribe  their  duties,  and 
fix  their  compensation.  Under  this  provision  the  person  em- 
ployed is  not  required  to  be  a  teacher,  nor  to  have  a  certificate 
as  a  teacher.  "We  think  the  plaintiff,  if  duly  employed  to 
render  the  services  he  claims  to  have  rendered  for  the  school 
district,  was  not  disqualified  from  receiving  compensation  there- 
for, by  the  fact  that  he  had  no  certificate  as  a  teacher.  The 
doubtful  question  in  the  case  is  as  to  whether  the  plaintiff  was 
legally  employed  to  perform  the  duties  for  which  he  seeks  com- 
pensation. It  is  clear  that  he  was  not,  in  the  first  instance,  so 
-employed,  because  such  employment  is  required  to  be  made  by 
the  board  of  trustees,  and  one  of  such  trustees,  acting  as  di- 
rector, could  not  lawfully  employ  the  plaintiff  so  as  to  bind  the 
district.  But,  as  this  contract  of  employment  was  one  which 
the  board  itself  could  lawfully  make,  the  question  arises  as  to 


SUPERINTENDENT  OF  SCHOOLS.  221 

whether,  if  the  plaintiff  actually  performed  the  duties  with  the 
knowledge  and  consent  of  the  board,  and  the  district  received 
the  benefit  of  his  services,  the  law  will  not  imply  a  promise  on 
the  part  of  the  district  to  pay  what  such  services  were  reason- 
ably worth.  Cases  are  not  wanting  which  hold  that  municipal 
corporations  may  become  liable  upon  an  implied  assumpsit. 
Where  a  municipal  corporation  receives  money  or  property  of 
a  party  under  such  circumstances  that  the  law,  independent  of 
express  contract,  imposes  the  obligation  upon  the  corporation 
to  do  justice  with  respect  to  the  same,  it  has  been  held  that  it 
may  be  liable  to  an  action.  (Argenti  v.  San  Francisco, 
16  Cal.  255.)  In  the  case  just  cited,  Chief  Justice  Field  say& 
that  in  reference  to  services  rendered,  the  case  is  different. 
"Their  acceptance  must  be  evidenced  by  ordinance  (or  express 
corporate  action )  to  that  effect.  ...  If  not  originally  au_ 
thorized,  no  liability  can  attach  upon  any  ground  of  implied 
contract.  The  acceptance  upon  which  alone  the  obligation  to- 
pay  could  arise,  would  be  wanting."  I  do  not  see  why  any 
distinction  should  be  made  between  services  rendered  and  ap- 
propriated by  municipal  corporations,  and  any  other  property 
so  received  and  appropriated,  except  that  it  might  be  more- 
difficult,  in  the  case  of  services  rendered,  to  show  an  actual 
acceptance  and  intentional  appropriation  than  in  the  case  of 
tangible  property.  But,  if  the  proof  showed  that  the  services 
were  actually  accepted  by  the  corporation  with  full  knowledge 
of  all  the  facts,  I  think  the  same  rule  ought  to  apply  to  services 
rendered  that  would  apply  to  money  or  other  property.  It 
does  not  appear  what  the  plaintiff  could  have  known  as  to  the 
services  having  been  performed  with  the  full  knowledge  and 
assent  of  the  board  of  trustees.  The  offer  of  proof  by  him  on 


222  PUBLIC  SCHOOL  LAW. 

this  subject  was  rejected,  and  we  think  erroneously.  For  this 
«rror,  and  also  for  the  direction  of  the  court  that  the  jury 
should  return  a  verdict  for  the  defendant,  the  judgment  must 
be  reversed,  and  a  new  trial  granted." 

§  192.  Supplies. — Where  township  refuses  to  receive  sup- 
plies on  the  ground  that  they  are  not  needed,  an  assignee  of 
holder  of  the  certificate  cannot  recover,  although  he  and  the 
seller  act  in  good  faith.1  A  complaint  on  note  given  by  Ind. 
school  trustee  must  allege  that  the  consideration  was  necessary, 
that  the  articles  were  suitable,  and  that  they  were  received  and 
accepted  ;2  and  evidence  of  the  usefulness  and  necessity  of  school 
supplies,  as  to  the  particular  township  to  which  they  were  fur- 
nished, is  material  in  an  action  for  the  price.8  Where  there 
was  conflicting  evidence  as  to  the  delivery  of  the  supplies,  and 
whether  they  were  necessary  for  the  common  schools  of  the 
township,  three  of  defendant's  witnesses  testifying  that  the  in- 
struments sold  were  not  useful,  a  verdict  for  the  defendant  will 
not  be  disturbed  ;8  and  a  school  commissioner  and  superintend- 
ent for  the  county,  and  a  person  who  has  followed  farming  in 
the  summer  and  taught  school  in  the  winter  in  that  township, 
are  competent  to  testify  as  to  the  usefulness  and  necessity  of 
such  supplies  in  the  township  ;8  and  a  trustee  may  refuse  to  fur- 
nish any  supplies  or  teachers  when  the  school  is  not  leased  or 
owned  by  the  school  township,  notwithstanding  orders  from 
county  superintendent,  and  vote  of  district.*  To  enable  board 
directors  to  buy  supplies  authorized  by  Iowa  Code,  §  1729,  the 
purchase  must  be  made  with  cash  actually  in  the  treasury  at  the 
time  and  unappropriated.5  Iowa  statute  requiring  physiology 


iBoyd  v.  Mill  C.  S.  Tp.,  (Ind.)  16  N.  E.  511. 

«  Reeve  Sch.  Tp.  v.  Dodson,  98  Ind.  497. 

-»  Litton  v.  Wright  Sen.  Tp.,  (Ind.)  27N.  E.  339. 


*  State  v.  Sherman,  90  Ind.  123. 

6  Naggy  v.  Dist.  Tp.  Monroe,  ( Iowa)  45  N.  W. 


SUPPLIES. 


223 


and  hygiene  to  be  taught  does  not  authorize  board  of  directors 
to  purchase  records,  maps,  etc.,  except  out  of  the  unappropriated 
funds,  or  to  contract  any  debt  therefor  ;*  and  where  a  contract 
was  made  with  members  of  a  district  board  for  a  certain  book, 
and  ratified  at  a  board  meeting,  and  at  an  annual  meeting  the 
board  were  authorized  to  place  a  copy  of  the  book  in  each  sub- 
district  in  the  township,  and  afterward  the  board  at  a  regularly 
called  meeting  repealed  the  ratification  of  the  contract,  it  ap- 
pears that  it  was  an  individual  contract  of  the  members,  and  the 
ratification  was  not  binding.8  Neither  the  board  of  directors 
of  a  district  township,  nor  the  directors  of  a  sub-district,  have  the 
power  to  contract  for  insurance  of  school-house,  without  a  vote 
of  the  district.8  The  board  of  directors  of  a  district  township 
cannot  contract  for  lightning-rods  for  school -houses,  without 
vote  of  the  district,*  and  an  order  drawn  on  the  treasurer  for 
such  purchase  is  invalid.5 

§  193.  Supplies. — Where  the  district  board  of  a  township, 
without  authority  from  the  electors,  purchased  maps  and  other 
apparatus,  the  subsequent  use  and  failure  to  repudiate  the  con- 
tract would  not  amount  to  a  ratification.8  In  Kas.,  school- 
district  board  cannot  bind  the  district  for  stereoscope,  without 
vote,  and  the  burden  of  proof  is  on  plaintiff  to  establish  vote  ;7 
but  a  director  and  clerk  of  school  district  purchasing  school 
apparatus  without  authority,  are  not  personally  liable,  the  parties 
having  notice.8  A  district  in  Me.  has  not  the  power  to  con- 
tract for  fuel.9  School  charts  were  held  not  to  be  necessary 
appendages  to  the  school-house,  within  Mich.  Comp.  L.  1871, 


i  Naggy  v.  Disk  Tp.  Monroe,  ( Iowa)  45  N.  W. 


a  Western  Pub.  H.  v.  Disk  Tp.,  (Iowa)  50  N. 

W.  551. 

8  American  Ins.  Co.  T.  Willow,  55  Iowa,  606. 
*Monticello  Bank  v.  Coffin's  Grove,  51  Iowa, 

350. 


«  Wolf  v.  Ind.  Sch.  Disk,  51  Iowa,  432. 

«  Taylor  v.  Wayne,  25  Iowa,  447. 

*  Sch.  Disk  v.  Perkins,  21  Kas.  536. 

8  Watson  v.  Pickard,  25  Kas.  662;  Duncan  v. 
Niles,  32  111.  532;  Mann  v.  Richardson,  66 
111.  481 ;  Abeles  v.  Cochran,  22  Kas.  405. 

»Estes  T.  Sch.  Disk,  33  Me.  170. 


224  PUBLIC   SCHOOL   LAW. 

§  3618  ;*  and  occasional  use  in  the  school  cannot  operate  as  a 
ratification  ;*  or  impose  on  the  district  any  obligation  to  pay 
for  them.8  A  custom  of  a  district  to  apportion  the  wood  itself 
to  the  scholars,  and,  if  there  was  a  deficiency,  to  sell  the  right 
of  supplying  it  to  the  lowest  bidder,  was  not  binding  upon  the 
prudential  committee,  in  the  absence  of  any  vote  of  the  district 
on  the  subject.3  He  might  supply  the  deficiency  himself,  and 
charge  the  price  to  the  district,  but  could  not  assess  the  amount 
on  the  scholars  or  the  district  without  a  vote.3  The  use  of  seats 
in  the  school-house  is  no  proof  that  the  district  has  ratified  the 
purchase,  where  it  does  not  appear  that  the  board  ever  presented 
any  account  for  such  seats  to  the  district  for  allowance.*  The 
treasurer  need  not  honor  a  warrant  signed  by  clerk  and  district 
director  for  fuel,  when  it  is  the  duty  of  the  board  to  provide 
and  the  board  has  not  acted.6  The  certificate  given  by  inde- 
pendent township  trustee  for  necessary  supplies  binds  the  cor- 
poration ;6  but  evidence  of  the  usefulness  and  necessity  of  the 
supplies,  as  to  the  particular  township  to  which  they  were  fur- 
nished, is  material,  and  all  persons  dealing  with  a  trustee  are 
bound  to  know  he  can  bind  his  township  only  by  contracts 
authorized  by  law.7 

§194.  Supplies. — In  Mich,  the  trustees  of  graded  school 
may  contract  for  piano  for  high -school  purposes.8  An  inde- 
pendent school  district  may  provide  for  teaching  of  music  and 
the  board  of  directors  have  authority  to  contract  for  the  pur- 
chase of  a  musical  instrument,  to  be  paid  for  out  of  any  unap- 
propriated funds  of  the  district  ;9  and  in  an  action  for  the  price, 


1  Gibson  v.  Sch.  Dist,  36  Mich.  404. 

2  Johnson  v.  Sch.  Dist  No.  1,  67  Mo.  319. 
'Norton  v.  Tinmouth  Sch.  Dist,  37  Vt  521. 
*  Kane  v.  Sch.  Dist.,  52  Wis.  602. 

•Doycc  v.  Gill,  59  Wis.  518. 


«  Miller  v.  White  River,  101  Ind.  503. 

i  Litton  v.  Wright  Sch.  Tp.,  ( Ind. )  27  N.  E.  329. 


SKnabe  v.  Bd.  Ed.,  (Mich.)  34  N.  W.  568. 
9Bellsmeyer  v.  Ind.  Dist  Marshalltown,  44 
Iowa,  564. 


SUPPLIES.  225 


the  court  will  presume  that  there  were  unappropriated  funds  of 
the  district  on  hand  at  the  time  the  purchase  was  made.1  Pur- 
chase of  flag  is  authorized  in  N.  J.2  A  complaint  for  furnishing 
school  supplies  must  show  necessity,  delivery,  and  acceptance.3 
District  will  be  liable  in  Mich,  for  contract  by  one  director  for 
fencing  land  inclosing  school-house  site ;  it  is  a  necessary  ap- 
pendage/ A  purchase  of  a  mathematical  chart  by  a  district 
board,  where  such  chart  may  be  considered  both  an  appendage 
and  an  apparatus,  is  not  illegal  ;6  and  at  the  annual  vote  for  tax 
for  school  appendages  the  district  may  ratify  acts  of  board  sim- 
ply irregular  in  purchasing  charts.5  The  division  of  the  school 
fund  by  Iowa  statute  into  teachers',  school-house,  and  contin- 
gent, is  an  appropriation  of  the  latter  to  statutory  purpose  of 
rent,  fuel,  and  repairs,  and  all  other  contingent  expenses  neces- 
sary for  keeping  the  school  in  operation  as  regards  empowering 
directors  under  Code,  §  1729,  to  use  unappropriated  for  maps, 
etc.6  School  warrants  issued  by  a  school  board  under  the  pro- 
visions of  S.  D.  Laws  1879,  ch.  14,  §  62,  in  payment  of  neces- 
sary appendages  for  a  school-house  during  the  time  a  school  is 
taught,  are  prima  facie  valid  claims  against  a  school  district, 
and  in  the  absence  of  evidence  to  the  contrary,  the  law  will  pre- 
sume that  they  were  lawfully  issued.7  Under  the  111.  statute, 
school  directors  may  appropriate  to  the  purchase  of  libraries 
and  apparatus  any  surplus  funds,  after  all  necessary  school  ex- 
penses are  paid,  and  the  form  of  the  orders  to  be  drawn  by 
them  on  the  treasurer  of  the  township,  as  prescribed  by  statute, 
must  be  followed.8 


iBellsmeyer  v.  Ind.  Diet.  Marshalltown,  44 

Iowa,  564. 

*N.  J.  L.  1890,  ch.177. 

'Bloomington  v.  Nat.  Sch.  F.  Co.,  107  Ind.  43. 
*Creageixv.  Wright  Sch.  Disk,  62  Mich.  101. 
6  Sch.  Dist.  v.  Swayze,  29  Kas.  211. 
—  15 


«Taggy  v.  Dist  Tp.  Monroe,  (Iowa)  45  N. 

7  Edinburgh-Am.  L.  &  M.  Co.  v.  Mitchell 

(  S.  D.)  48  N.  W.  131. 

8  Clark  v.  Sch.  Dirs.,  78  111.  474. 


226  PUBLIC   SCHOOL   LAW. 

§195.  Supplies. — Litten  v.  Wright  School  Tp.,  (Ind.)  26 
N.  E.  567 — Elliott,  J. :  "Our  decisions  affirm  that,  to  entitle  a 
plaintiff  to  recover  for  personal  property  sold  to  a  township 
trustee  for  school  purposes,  it  must  be  shown  that  the  property 
was  delivered  to  the  school  township  or  its  officers :  School  Tp. 
v.  Barnes,  119  Ind.  213 ;  Bloomington  School  Tp.  v.  National 
etc.  Co.,  10T  id.  43 ;  State  v.  Howes,  112  id.  323 ;  Boyd  v. 
School  Tp.,  114  id.  210  ;  Union  School  Tp.  v.  First  Nat.  Bank, 
102  id.  464.  A  note  or  other  obligation  executed  by  the  trus- 
tee does  not  bind  the  school  corporation,  for  it  is  only  bound 
where  the  school  supplies  are  actually  furnished :  Union  School 
Tp.  v.  First  Nat.  Bank,  supra ;  Grimsley  v.  State,  116  Ind.  130. 
The  notes  or  certificates  issued  by  a  township  trustee  do  not, 
under  the  law  declared  in  the  cases  referred  to,  preclude  the 
school  township  from  proving  the  actual  or  true  value  of  the 
property  purchased  by  the  trustee.  If  in  fact  the  property  is 
valueless,  nothing  can  be  recovered.  The  rule  which  prevails 
in  ordinary  cases  where  parties  fix  the  value  of  property  by  the 
exercise  of  their  own  judgment  does  not  apply  to  the  purchase 
of  supplies  on  credit,  for  school  corporations,  for  no  more  than 
the  reasonable  value  of  the  property  can  in  any  event  be  recov- 
ered :  Boyd  v.  School  Tp.,  114  Ind.  210.  The  law  intends  that, 
where  property  is  sold  on  credit  to  school  corporations,  they 
shall  be  only  held  for  the  fair  and  reasonable  value  of  the  prop- 
erty received.  Parties  who  deal  with  school  officers  are  bound 
to  know  the  limitations  placed  upon  them  by  law.  It  was  there- 
fore proper  in  this  case  to  admit  evidence  of  the  value  of  the 
property  which  the  plaintiff  alleged  had  been  sold  to  the  school 
township." 

§196.    Surety.  —  Raising   money  for   building  is   "school 


SURETY. 


22V 


purposes"  within  law  of  1864,  and  the  sureties  of  treasurer  are 
liable  for  such  money  j1  and  the  receipt  of  the  treasurer's  draft, 
the  delivery  of  the  bond  to  him,  followed  (on  payment  of  the 
draft  being  refused)  by  a  return  of  the  bond  and  erasure  of  the 
word  "paid,"  will  not  discharge  the  sureties.1  Under  "N.  Y.  L. 
1864,  ch.  565,  §7,  treasurer  of  board  of  education  gave  a  bond, 
but  not  under  seal,  and  entered  upon  the  discharge  of  the 
office ;  the  writing  was  enforceable  against  the  sureties  as  a 
bond.1  The  sureties  of  defaulting  school  commissioner  cannot 
sue  to  recover  the  revenues.8  The  sureties  of  a  public  officer 
are  only  responsible  for  his  performance  of  the  duties  assigned 
him  by  law ;  where  the  law  requires  the  clerk  of  the  county 
court  to  keep  the  bonds  for  the  loan  of  school  funds,  and  the 
county  court  to  renew  bonds  and  to  pass  upon  the  sufficiency  of 
the  bonds,  and  if,  by  an  order  of  the  court,  these  duties  are 
devolved  upon  the  treasurer,  the  sureties  of  the  treasurer  will 
not  be  liable  therefor.8  If  the  court  permit  the  treasurer  to  use 
the  school  funds  as  a  loan,  and  any  loss  happen,  his  sureties 
will  not  be  responsible.8  Where  a  chairman,  in  N.  C.,  gave  his 
bond  in  Jan.  1855,  and  continued  in  office  without  any  new 
appointment  until  April,  1857,  (when  a  successor  was  appointed,) 
he  and  his  sureties  were  held  liable  on  such  bond  for  an  unex- 
pended balance  of  school-money  in  his  hands  in  1857.* 

§198.  Surety. — Upon  a  change  in  the  contract  between 
the  school  district  and  the  contractor,  a  consent  thereto  by  his 
sureties  would  not  increase  their  obligations  or  connect  them  as 
parties  to  the  amended  contract.5  While  a  school  district  in 
whose  favor  a  bond  to  secure  a  contract  had  been  executed 


i  Fail-port  Sch.  Bd.  v.  Fonda,  77  N.  T.  350. 
apryse  y.  Hewitt,  (  Ky.)  1  S.  W.  469. 
«Nolley  v.  Callaway  Co.  Ct.f  11  Mo.  447. 


4  Chairman  Com.  Sch.  v.  Daniels,  6  Jones, 

N.  C.  L.  444. 
•Ind.  Sch.  Dist.  v.  Eeichard,  39  Iowa,  168. 


PUBLIC   SCHOOL   LAW. 


might  have  power  directly  to  release  the  sureties,  it  had  author- 
ity to  change  the  contract  and  thus  release  the  sureties.1  Sure- 
ties of  a  school  township  treasurer  are  liable  for  money  coming 
to  his  hands  during  his  former  term  of  office  and  not  paid  over 
to  his  successor.* 

§199.  Tax— Alabama.— The  Board  Mobile  School  Com- 
missioners is  a  municipal  corporation,  and  the  statute  authoriz- 
ing assessing  and  collection  of  taxes  is  not  repealed  by  repealing 
section  of  revenue  law  of  1868  ;3  and  the  statute  of  1856  does 
not  repeal  the  former  statute  authorizing  collection  of  tax  on 
auction  sales.4  A  board  of  school  commissioners  is  a  municipal 
corporation,  and  taxes  authorized,  assessed  and  collected  for  it 
are  for  municipal  purposes,  and  are  not  repealed  by  §  136  of 
the  revenue  law.5  The  delegation  of  power  to  tax  to  trustees 
of  Cullman  school  district,  they  being  appointed,  not  being  a 
municipal  corporation,  is  unconstitutional.8 

§  200.  Tax — Arkansas. — The  failure  of  judges  of  election 
to  state  the  number  of  votes  cast  for  or  against  school  tax  will 
not  vitiate  sale  of  land  for  same.7  The  trustees  cannot  assess 
amount  of  levy ;  it  is  the  duty  of  the  electors  to  determine  the 
amount ;  if  they  do  not,  the  trustees  then  submit  the  matter  to 
county  court.8  The  county  court  could  not  levy  tax  for  school 
purposes  unless  voted  by  district  or  recommended  by  trustee ; 
and  in  1868  there  was  no  limit  to  amount  that  might  be  voted  ;9 
but  the  act  of  1871  prohibited  levy  of  over  five  mills  school 
tax,  not  being  a  separate  district  in  city  or  town.10  The  statute 


*Ind.  Sch.  Diet.  v.  Reichard,  50  Iowa,  98. 
*Kagay  v.  Sch.  Trs.,  68  111.  75.    See  also  59 

111.  149. 
'Horton  v.  Mobile  Sch.  C.,  43  Ala.  598;  Clark 

v.  Mobile  Sch.  C.,  36  Ala.  621. 
*  Brooks  v.  Mobile  Sch.  C.,  31  Ala.  227. 
'Horton  v.  Mobile  Sch.  C.,  43  Ala.  598. 


•Schultes  v.  Eberly,  82  Ala.,  242. 
*  Staley  v.  Leomans,  53  Ark.  488. 
8  Co.  Ct.  v.  Robinson,  27  Ark.  116. 
•Murphy  v.  Harrison,  29  Ark.  340;  Worthen 

v.  Badgett,  32  Ark.  496. 
10  Vaughn  v.  Bowie,  30  Ark.  280. 


TAX  — COLORADO. 


229 


allowing  the  board  of  supervisors  to  levy  the  district  -  school 
taxes  in  cities  and  towns  organized  in  single  districts  was  re- 
pealed by  constitution  of  18T4.1  Under  act  of  1871,  the  county 
court  had  no  power  to  levy  tax  for  school  purposes  unless  the 
amount  had  been  voted  or  the  trustee  had  reported  the  amount; 2 
and  county  court  cannot  levy  district-school  tax  except  as  voted, 
and  if  it  does  the  sale  and  levy  will  be  void.3  School  warrants 
of  trustees  are  receivable  for  school  taxes  of  the  district  in 
which  they  were  issued.*  Since  1875  the  notice  for  annual 
meeting  for  levying  tax  must  be  given  by  the  school  directors 
only.5  The  tax  title  is  inferior  to  lien  of  state  for  unpaid  pur- 
chase-money for  school  land.6 

§  201.  Tax — California. — Special  tax  for  school  purposes 
can  only  be  levied  upon  vote  of  school  district,7  and  substantial 
compliance  with  law  is  sufficient  for  a  levy  of  school  tax,8  but 
the  tax  must  be  based  upon  an  assessment  made  by  an  assessor, 
elected  by  the  qualified  electors  of  the  school  district.' 

§202.  Tax — Colorado. — Exemption  of  seminary  property 
applies  to  property  in  actual  use  for  school  purposes.10  Taxes 
for  school  purposes  are  not  a  lien  on  personalty  until  seizure 
on  the  tax-warrant  ;n  where  school  tax  is  properly  certified  to 
county  commissioners,  mandamus  is  proper  remedy  to  compel 
levy.18  The  statute  in  regard  to  levy  of  school  tax,  certifying 
same  to  county  commissioners,  and  the  levy  thereunder,  is  not 
unconstitutional.13  If  a  school  district  is  divided,  the  secretary 
of  district  cannot  distrain  property  out  of  his  district.1* 


iCole  v.  Blackwell,  38  Ark.  271. 
«  Cairo  etc.  v.  Parks,  38  Ark.  131. 
'Rogers  v.  Kerr,  42  Ark.  100. 
«Wallis  v.  Smith,  29  Ark.  354. 
»Davies  v.  Holland,  43  Ark.  425. 
•Simpson  T.  Robinson,  37  Ark.  132. 
»  People  v.  Castro,  39  Cal.  65. 


8  People  v.  Pratt,  59  Cal.  78. 

•  People  v.  Sac.  etc.  R.  R.  Co.,  49  Cal.  415. 
^Comm'rs  T.  Col.  Seminary,  12  Col.  497. 
"  McKay  T.  Batchellor,  2  Col.  591. 
18  People  v.  Comm'rs,  12  Col.  89. 
»  McKay  v.  Batchellor,  2  Col.  591. 


230  PUBLIC   SCHOOL  LAW. 

§  203.  Tax — Connecticut. — Where  a  school  society  voted 
a  tax,  the  omission  of  the  vote  to  fix  a  time  for  the  payment  of 
the  tax  did  not  render  it  invalid,  as  the  tax,  being  legally  im- 
posed, was  payable  on  demand,  or  within  a  reasonable  time.1 
Since  1821  the  lands  of  a  non-resident  are  taxable  where  situ- 
ated.2 Notice  given  by  the  district  committee  of  the  time  and 
place  of  the  meeting  of  equalizing  board,  pursuant  to  the  pro- 
visions of  §  10  of  act  1839,  relating  to  schools,  is  sufficient 
notice  within  that  statute.3  Where  the  certificate  of  a  district 
school  committee  stated  the  tax,  and  when  and  for  what  laid, 
and  the  recorded  vote  of  the  district,  open  to  public  inspection, 
specified  the  list  on  which  it  was  laid,  such  rate-bill  was  not  in- 
valid because  it  did  not  show  on  what  list  the  tax  was  laid.3 
In  an  action  of  trespass  against  the  collector  and  committee  of 
a  school  society,  evidence  to  prove  that  the  defendants,  and 
other  members  of  the  society,  voted  for  the  tax,  with  the  inten- 
tion of  having  the  proceeds  distributed  among  the  several  dis- 
tricts in  the  society,  was  inadmissible.* 

§  204.  Tax — Florida. — The  "itemized  estimate "  of  moneys 
required  to  be  raised  by  county  tax  for  school  purposes,  fur- 
nished by  the  board  of  public  instruction  to  the  board  of  county 
commissioners,  should  contain  the  estimated  expenditures  for 
the  school  year,  the  estimated  income  from  the  state  school  tax, 
state  school  fund,  and  other  probable  sources ;  and  may  contain 
an  item  for  outstanding  warrants  which  were  issued  by  the 
board  of  public  instruction  and  are  still  unpaid.6  Under  Laws 
1879,  ch.  3100,  §  1,  the  tax  assessor  of  a  county  cannot  be  com- 
pelled by  mandamus  to  levy  a  county  school  tax,  merely  upon 

iBartlett  v.  Kinsley,  15  Conn.  327.  I    *Bartlett  v.  Kinsley,  15  Conn.  327. 

8Rowe  v.  Blakeslee,  11  Conn.  483.  6 State  v.  Bd.  Co.  Comm'rs,  17  Fla.  418. 

1  Sanf ord  v.  Dick,  15  Conn.  447. 


TAX— ILLINOIS. 


231 


receiving  the  statement  of  the  board  of  public  instruction,  but 
only  upon  the  requisition  of  the  board  of  county  commissioners.1 

§205.  Tax — Georgia. — A  majority  of  the  complainants 
having  voted  in  favor  of  the  approval  of  a  local  school  law,  and 
all  of  them  having  acquiesced  in  the  result  of  the  election  until 
after  a  school  was  established  and  put  in  operation,  an  injunc- 
tion was  refused  ;2  and  acquiescence  in  election  authorizing  tax, 
is  a  bar  to  suit  restraining  collection  ;3  the  act  of  1883,  as  to 
Richmond  county,  did  not  repeal  the  act  of  1872  giving  the 
board  of  education  the  power  to  raise  school  funds  by  taxation.* 
The  acts  1889-90-91  are  to  be  construed  as  one,  and  the  com- 
missioners may  lower  rate  of  taxation  estimated  by  school  board 
where  it  does  not  affect  the  amount  of  money  needed  by  the 
board.5 

§206.  Tax — Illinois. — The  111.  statute  does  not  exempt 
from  taxation  a  private  academy  conducted  for  profit  ;6  to  ex- 
empt it  as  a  public  school  from  taxation,  such  school  must  be 
property  under  the  immediate  control  of  the  school  directors  ;7 
lands  held  by  Illinois  Industrial  University's  trustees  are  there- 
fore exempt  from  taxation  ;8  and  the  validity  of  school  tax 
cannot  be  questioned  by  one  who  participated  in  the  election 
and  seconded  the  motion  to  raise  the  money.*  A  school  tax 
must  be  certified  to  the  clerk  at  the  appointed  time.10  Directors 
of  district  schools  have  power  to  levy  taxes  for  the  purpose  of 
supporting  a  school  for  six  months  in  the  year,  without  first 
submitting  the  question  to  a  vote  of  the  inhabitants,  but  cannot 
erect  a  house  costing  more  than  $1,000,  nor  change  a  site;11 


1  Jones  v.  States,  17  Fla.  411. 

»Irvin  v.  Gregory,  (Ga.)  13  S.  E.  120. 

8Irvin  v.  Gregory,  89  Ga.  695. 

*  Montgomery  v.  Richmond  Co.  Ed.  Bd.,  74 

Ga.41. 

6 State  v.  Co.  Comm'rs,  (Fla.)  10  So.  14. 
6  Montgomery  v.  Wyman,  130  HI.  17. 
i  Pace  v.  Jefferson  Co.,  20  111.  644. 


8  Trs.  111.  Industrial  University  v.  Champaign 

Co.,  76  111.  184. 

»  Thatcher  v.  People,  98111.  632. 
"Cowgill  T.  Long,  15  111.  202. 
"Mnnson  v.  Minor,  22  111.  594;    Merritt  v. 

Farris,  22  111.  303;  Schofield  v.  Watkins, 

22  111.  66. 


232 


PUBLIC   SCHOOL  LAW. 


and  the  tax  will  be  binding,  although  persons  and  property 
liable  to  assessment  are  not  included.1  The  county  clerk  can- 
not extend  school  taxes  from  year  to  year  on  his  own  motion.8 
The  act  of  1879,  authorizing  a  levy  not  to  exceed  2  per  cent, 
does  not  affect  board  of  education  of  Bloomington,  that  being 
under  a  special  act,  and  therefore  excepted  out  of  said  act  of 
1879.3  The  levying  of  a  tax  to  defray  the  expenses,  and  the 
acceptance  of  school-house  built  without  vote,  and  teaching 
school  therein,  could  not  legalize  the  act  or  bind  the  tax- 
payers.4 The  prohibition  in  Const.,  art.  4,  §  22,  that  the  gen- 
eral assembly  shall  not  pass  any  local  or  special  law  providing 
for  the  "management"  of  common  schools,  does  not  prevent 
levying  of  taxes  by  different  officers  in  a  city  from  those  dis- 
charging these  duties  in  other  localities.5  A  bill  to  enjoin  a 
school  tax,  alleging  that  the  determination  to  levy  was  not 
made  by  the  school  directors  at  a  regular  or  special  meeting, 
nor  in  their  corporate  capacity,  but  as  individuals,  does  not 
charge  that  the  directors  acted  in  the  matter  without  meeting 
together.8  Where  the  levy  of  a  tax  is  proper,  and  is  within  the 
statutory  limit,  it  cannot  be  enjoined  as  unnecessarily  large,  or 
that  the  directors  proposed  to  use  part  for  another  purpose.* 
Under  act  1889,  p.  296,  art.  5,  p.  17,  a  tax  levy  which  has  been 
duly  signed  by  the  directors  and  filed  with  the  township  treas- 
urer is  not  invalidated  by  the  failure  to  record  the  action  of 
the  directors  in  making  the  levy/  The  school  law  (Eev.  Stat. 
1874,  p.  957,  §35)  authorizes  trustees  of  high  schools  to  levy 
taxes  for  the  support  of  such  high  school.7  The  legislature 


iSchofield  v.  Watkins,  22  HI.  66. 

2  Weber  v.  R.  R.,  108  Til.  451. 

3  People  v.  City  Bloomingion,  130  El.  406. 
*Sch.  Dirs.  etc.  v.  Fogleman,  76  111.  189. 


6  Speight  v.  People,  87  111.  595. 

«  Lawrence  T.  Trainer,  (111.)  27  N.  E.  197. 

'  Fisher  v.  People,  84  111.  491. 


TAX  — IOWA. 


233 


may  legalize  irregularities  in  the  assessment  of  taxes  j1  and  acts 
of  directors  in  levying  a  tax  will  not  be  inquired  into  for  irreg- 
ularities by  a  court  of  equity  ;J  but  if  a  tax  is  attempted  for  the 
benefit  of  the  directors  acting  corruptly,  equity  will  relieve.1 

§  207.  Tax — Indiana. — The  law  of  1855  does  not  prevent 
the  township  trustees  from  levying  over  25  cents  on  $100  to 
discharge  debts  incurred  under  the  old  law.2  The  exercise  of  a 
valid  power  to  levy  a  tax  will  not  be  vitiated  by  an  additional 
vote  authorizing  such  tax  in  pursuance  of  an  unconstitutional 
section.3  The  trustees  of  townships  have  no  power  to  levy  a 
tax  to  build  a  township  house,  but  may  for  a  school-house.* 
The  constitution  requires  public  schools  to  be  provided  for  by 
general  laws,  and  a  law  authorizing  cities  to  levy  school  taxes 
and  support  schools,  not  limited  to  the  object  of  building  houses, 
is  unconstitutional.5  Township  school  tax,  authorized  by  1  Rev. 
Stat,  454,  §  130,  is  illegal.8  Under  R.  S.  1881,  §  4460,  the 
school  board  had  no  power  to  levy  poll  tax.7 

§  208.  Tax — Iowa. — A  non-resident  tax-payer  has  the  right 
to  see  that  the  school  funds  are  property  administered  ;8  but 
after  erection  of  school-house  and  voting  of  tax  to  pay  for  same, 
a  tax-payer  cannot  enjoin  the  collection  of  the  tax  for  irregu- 
larities in  contract  for  construction.9  A  sub-district  may  levy  a 
tax  for  school-house  in  addition  to  that  voted  by  the  township.10 
Land  not  in  B.  township,  which  has  not  been  set  off  into  B.  by 
reason  of  natural  obstacles,  under  Code,  §  179T,  cannot  be  taxed 
for  erecting  school-house  in  B.  township.11  A  tax  voted  for  a 
new  building  will  not  be  enjoined  where  it  appears  that  the 


i  Schofield  v.  Watkins,  22  111.  66. 

*  Wayne  v.  Alexander,  10  Ind.  221. 

'Winters  v.  State,  9  Ind.  174. 

4Trs.  etc.  T.  Osborne,  9  Ind.  458;  Adamson  v. 

Auditor,  9  Ind.  174. 
6  Lafayette  v.  Jennero,  10  Ind.  70. 


«Lima  v.  Jenks,  20  Ind.  301. 

7  Indianapolis  S.  C.  v.  Magner,  84  Ind.  67. 

8 Case  v.  Blood,  (Iowa)  33  N.  W.  144. 

•  Casey  v.  Nutt  S.  D.,  64  Iowa,  659. 
10  Wool  v.  Farmer,  69  Iowa,  533. 
"  Large  v.  Washington,  53  Iowa,  663. 


234:  PUBLIC   SCHOOL   LAW. 

building  used  is  old  and  remote  from  some  of  the  scholars  of 
the  district  and  they  cannot  attend.1  An  illegal  tax  having 
been  refunded  entirely  from  the  funds  of  a  portion  of  the 
district  from  which  it  was  collected,  that  portion  may  sue  the 
remaining  parts  for  contribution.8  A  board  of  supervisors  can- 
not levy  a  tax  to  pay  a  judgment  against  the  school-house  fund, 
after  the  tax  for  that  fund  has  reached  the  limit  allowed  for  the 
year.3  In  a  proceeding  to  compel  the  board  of  directors  of  a 
district  township  to  levy  a  tax  required  by  the  electors  of  a  sub- 
district,  for  the  erection  of  a  school-house,  the  records  of  the 
proceedings  of  the  sub-district  meeting,  signed  by  the  proper 
officers,  is  admissible  in  evidence,  though  not  required  to  be 
kept.*  A  tax  levied  at  a  district  meeting  not  held  within  the 
time  fixed  by  the  act  of  1858,  ch.  52,  §  10,  is  not  cured  by  act 
passed  by  board  of  education,  Dec.  15,  1862  ;5  the  directors  of 
the  school  district  have  the  power  to  levy  tax  to  increase  the 
teachers'  fund  when  it  becomes  necessary  to  do  so.6  Liability 
to  pay  a  school  tax  attaches  upon  levy  of  the  tax  by  vote  of  the 
district.7  Where  a  tax  is  levied  by  a  county  judge,  under  §  31 
of  the  act  Mch.  12,  1858,  for  the  support  of  school  with- 
in the  county,  the  county  treasurer  may  lawfully  collect  the 
same.8  Where  there  is  a  failure  to  collect  a  school-house  tax 
during  the  year  in  which  it  is  levied,  the  power  and  authority 
conferred  by  the  warrant  do  not  expire  with  the  year,  and  a 
lost  warrant  may  be  supplied  by  a  new  one  ;9  and  the  officer 
can  show  that  a  warrant  was  issued  and  lost,  and  may  protect 
himself  by  proving  its  contents.9  A  resident  in  a  school  district 


W.  1091. 


1  Seaman  v.  Banghman,  ( Iowa)  47  N. 
8  Spencer  v.  Reverton,  56  Iowa,  85. 
•Sterling  Sch.  Furniture  Co.  v.  Harvey,  45 

Iowa,  466. 
*Rose  v.  Hindman,  36  Iowa,  160. 


6  Spencer  v.  Wheaton,  14  Iowa,  38. 

6  Snyder  v.  Wampton,  12  Iowa.  409. 

7  Toothaker  v.  Moore,  9  Iowa,  468. 

8  Co.  of  Louiea  v.  Davieon,  8  Iowa,  517. 
9Higgins  v.  Reed,  8  Clarke  (Iowa)  298. 


TAX  — KENTUCKY. 


235- 


cannot  be  assessed  in  that  district  for  the  personal  property 
which  is  in  another  district.1  A  vote  "that  there  be  an  appro- 
priation sufficient  to  build  a  house  on  the  line  between  "  two 
specified  sub-districts,  with  a  further  vote  uthat  there  be  $800 
levied  as  school-house  tax,"  amounts  to  voting  a  tax  for  the 
school-house  described  in  the  first  vote,  and  cannot  be  rescinded 
bj  the  electors.8  A  levy  made  later  than  the  time  directed  by 
Code,  §"1778,  was  sustained;3  but  Code,  §  1738,  is  mandatory,, 
and  a  tax  cannot  be  levied  by  board  directors  after  third  Mon- 
day in  May.*  The  action  of  supervisors  in  making  a  levy  under 
Code,  §  1777,  depends  upon  the  action  of  the  board  of  directors, 
and  when  that  is  invalid  the  whole  will  be.*  The  Code,  §  1807, 
limiting  levy,  applies  only  to  districts  in  which  no  bonded  debt 
has  been  created  ;5  this  section  does  not  limit  tax  under  §  1823,. 
for  tax  necessary  for  independent  district  to  pay  bonds.6 

§209.  Tax  —  Kansas. —  Agricultural  college  is  wholly  a 
state  institution  and  exempt  from  taxation.7  School-district  plat 
filed,  but  not  attested,  is  not  evidence  to  show  that  certain  prop- 
erty is  included  in  a  certain  school  district.8  An  apportionment 
and  award  after  lapse  of  three  years  will  be  held  binding  ;9  and 
the  general  rule  is,  that  on  a  division  of  a  district  the  original 
corporation  retains  its  property  until  settled  for.10  In  a  suit  by 
a  district  to  recover  taxes  paid  to  another,  the  validity  of  such 
district  cannot  be  questioned.11 

§210.  Tax  —  Kentucky.  —  The  legislature  could  compel 
the  payment  of  tax  for  1885  by  residents  of  district  outside  of 
city,  cut  off  from  the  city  by  act  of  1886 ;  the  residents  of  the 


1Lemp  v.  Hastings,  4  Greene  (Iowa)  448. 
'Benjamin  v.  Malaka.  50  Iowa,  648. 
'Perrin  v.  Benson,  49  Iowa,  325. 
4  Standard  Coal  Co.  v.  Ind.  Diet,  etc.,  ( Iowa) 

34  N.  W.  870. 

6  Richards  v.  Lyon  Co.  S.,  69  Iowa,  612. 
«U.  S.  v.  Ind.  S.  D.,  20  F.  R.  294. 


*Bd.  Trs.  v.  Champaign  Co.,  76  111.  184;  City 
Chicago  v.  People,  80  111.  384;  Board  \v 
Hamilton,  28  Kas.  376. 
s  A.  &  N.  R.  R.  v.  Maquilkin,  12  Kas.  301. 
»Sch.  D.  v.  Sch.  D.,  32  Kas.  123. 
«>  Bd.  Ed.  v.  Sch.  Dist,  45  Kas.  560. 
11  Sch.  Dist.  v.  Sch.  Dist.,  45  Kas.  543. 


236  PUBLIC   SCHOOL   LAW. 

outlying  district  being  given  the  school  privileges  of  the  city  for 
one  year,  said  act  being  adopted  by  majority  of  qualified  white 
voters  of  the  district.1  Unless  the  report  of  the  division  of 
counties  into  school  districts  by  boundaries  is  filed  for  record 
with  the  county  clerk,  the  trustees  cannot  enforce  the  collection 
of  taxes.2  System  of  education  in  a  particular  district,  under 
act  authorizing  tax  so  that  school  may  be  taught  the  entire 
year,  and  the  teaching  of  Latin  and  Greek  in  common  schools, 
is  not  unconstitutional.3  One  receiving  his  share  of  the  bene~ 
fits  of  the  school  system  cannot  complain  that  the  legislative 
power,  as  exercised  in  the  expenditure  of  the  school  fund,  is 
unwarranted.*  Mere  irregularity  in  the  election  will  not  invali- 
date the  levy  voted  for  by  majority  of  voters  in  a  district.5 
A  tax  on  a  town  for  a  school,  permitting  non-residents  of  a 
town  to  attend  free,  is  void.6  Under  statutes  1884,  and  1886, 
the  trustees  of  a  school  district  may  levy  a  tax  to  build  a 
new  school -house  not  to  exceed  a  certain  rate,  without  a 
vote,  when  a  necessity  exists,  or  they  have  been  notified 
that  the  old  one  has  been  condemned  by  the  superintend- 
ent.7 The  statute  for  assessment  of  railroad  for  its  length 
through  county,  city,  and  town,  for  the  purposes  of  county, 
<;ity,  town,  or  "precinct,"  does  not  authorize  an  assess- 
ment for  school  district.8  The  provision  of  statutes,  ch.  92, 
art.  1,  as  to  use  of  part  of  general  tax  for  school,  and 
art.  12,  as  to  application  of  railroad  tax,  do  not  conflict;  each 
<jan  stand.9  The  power  of  states  to  maintain  common  schools 
by  taxation,  and  to  control  such  schools  when  established,  is  a 


iFitzpatrick  v.  Bd.  Trs.,  (Ky.)  7  S.  W.  896. 
SEingo  v.  Stewart,  4  B.  Mon.  (  Ky.)  206. 


8  Newman  v.  Thompson,  (Ky.)  4  S.  W.  341. 
4  Following  8  Cow.  (  N.  Y.  )  543  ;  56  Pa.  St.  359  ; 

22  Gratt.  (  Va.)  857;  Marshall  v.  Donavan, 

10  Bush  (Ky.)  681. 


6  Common  Sch.  D.  v.  Garvey,  80 


80  Ky.  159. 
y.)  17  S.  W. 


« Town  Belle  P.  v.  Pence,  (Ky.)  17  S.  W.  197. 
TMacklin  v.  Trs.,  (Ky.)  11  S.  W.  657. 

8  L.  &  N.  R.  R.  v.  Johnson,  ( Ky.)  11  S.  W.  666. 

9  Auditor  v.  Frankfort,  81  Ky.  680. 


TAX  — MASSACHUSETTS.  237 

power  not  delegated  to  the  U.  S.  by  the  constitution,  nor  pro- 
hibited by  it  to  the  states.1  The  trustees  of  common  schools 
may  appoint  their  collector  and  fill  vacancies  in  the  office,  and 
a  collector  failing  to  give  a  bond  for  nine  months  may  be  su- 
perseded.2 

§211.  Tax — Louisiana. — Commercial  college  is  exempt;* 
the  exemption  for  school  purposes  is  not  affected  by  the  fact 
that  the  principal  owner  and  a  teacher  occupy  same  as  a  resi- 
dence.3 

§212.  Tax  —  Maryland. — The  statute  requiring  the  com- 
missioners of  Allegheny  county  to  levy  the  balance  estimated 
by  the  board  of  commissioners  of  public  schools  and  reported 
to  the  commissioners  of  the  county,  is  not  unconstitutional,  as 
not  being  uniform  throughout  the  state.*  Where  inhabitants 
of  a  district  have  the  power  to  tax,  it  will  not  be  held  invalid 
because  the  records  do  not  show  that  every  provision  of  the 
law  was  complied  with,  the  contrary  not  being  shown;6  and 
such  tax  may  be  voted  to  defray  the  expenses  of  a  preceding 
as  well  as  of  the  current  year.6  Under  the  school  law,  (Code 
Md.,  art.  77,  p.  22,)  and  the  Code  of  Public  (Local)  Laws,  art.  2, 
p.  123,  providing  that  in  Anne  Arundel  county  there  may  be 
an  additional  levy,  the  county  commissioners  cannot  deduct 
from  the  school  levy,  unconditionally  made,  either  the  amount 
of  the  treasurer's  commissions  or  discounts  for  prompt  payment 
of  taxes,  but  must  pay  over  the  gross  levy  to  the  school  com- 
missioners.' 

§213.  Tax— Massachusetts.— The  Mt.  Hermon  school 
property  is  exempt,  notwithstanding  agricultural  resources  and 


i  Marshall  v.  Donavan,  10  Bush  (Ky.)  682. 
'Chiles  v.  Todd,  4  B.  Mon.  (Ky.)  126. 
•Blackman  v.  Houston,  (La.)  2  So.  193. 
«Comm'rs  v.  Allegheny,  20  Md.  449. 


6 Burgess  v.  Pue,  2  Gill.  (Md.)  254. 
«Bd.  Co.  Sen.  Comm'rs  r.  Gnatt,  (J 


(Md.)  21  A. 


•238 


PUBLIC   SCHOOL   LAW. 


products.1  Under  Gen.  St.,  ch.  39,  and  Stat.  1873,  ch.  315,  the 
stock  of  a  national  bank,  belonging  to  an  inhabitant  in  a  town 
other  than  that  in  which  the  bank  is  situated,  cannot  be  taxed 
for  building  a  school-house  in  the  district.2  Where  tax  is 
assessed  by  united  district,  the  fact  that  one  district  did  not 
assent  to  action  of  town  uniting  it  with  the  other  will  not  invali- 
date the  tax  ;3  and  a  school  tax  assessed  at  meeting  called  by 
prudential  committee,  that  is  appointed  by  town  and  school 
district,  is  not  invalid  by  reason  of  the  town  not  voting  at  the 
.annual  meeting  if  it  had  the  year  before,  that  teachers  should 
be  contracted  with  by  prudential  committee,  pursuant  to  act  of 
1839,  ch.  137.3  A  district  valuation  based  on  town  valuation 
for  same  year  need  not  describe  the  real  estate  and  machinery 
taxed  if  it  shows  by  the  names,  figures,  and  by  the  town  valua- 
tion that  the  property  is  in  the  district  ;3  and  a  school  district 
tax  on  realty  and  machinery  in  the  district  and  belonging  to  an 
inhabitant  of  the  town,  although  not  of  the  district,  may  be 
assessed  to  him  or  to  the  tenant  ;3  an  assessment  of  district  tax 
-on  a  lot,  the  whole  of  which  is  not  in  the  district,  is  void  as  to 
that  lot,  but  this  assessment  will  not  affect  others  of  separate 
descriptions.3  A  district  tax  cannot  be  assessed  against  party 
who  is  set  off  to  another  district  before  assessment  is  complete.4 
Where  party  resides  in  one  town  and  carries  on  a  trade  in 
another,  he  is  not  liable  to  be  assessed  on  his  stock  in  trade,  for 
building  a  school-house  in  the  district  where  he  resides,  under 
K.  S.,  chs.  7  and  23. B  The  district  in  which  the  land  of  non- 
resident shall  be  taxed  must  be  located  before  the  school  tax  is 
assessed.6  A  legislative  enactment  authorizing  a  town  tax  for 


IMt.  Hermon  Boys'  Sch.  v.  Town  of  Gill, 

(Mass.)  13  N.  E.  354. 
«Little  v.  Little,  131  Mass.  367. 
;  Blackstoiie  y.  Taft,  4  Gray  (Mass.)  250. 


4Jackman  v.  Sch.  D.,  5  Gray  (Mass.)  413. 
s  Bates  v.  Sch.  D.,  9  Gray  (Mass.)  433. 
6 Loud  y.  Darling,  7  Allen  (Mass.)  205. 


TAX  — MAINE. 


239 


the  support  of  a  free  school  founded  by  private  benevolence, 
but  under  the  control  of  trustees,  some  of  whom  are  not  elected 
by  the  people,  is  unconstitutional.1  An  action  to  recover  illegal 
tax  lies  against  the  district  and  not  against  the  town  or 
assessors  ;2  and  it  is  no  defense  that  the  town  treasurer  ad- 
vanced the  whole  amount  of  the  assessed  tax  before  the  collec- 
tion from  the  plaintiffs  of  his  part.2  Under  R.  S.,  a  female  high 
school  for  purpose  of  teaching  the  higher  branches  than  those 
taught  in  grammar  schools  of  the  town,  was  a  town  school,  and 
money  for  its  support  was  legally  raised  by  tax.3  An  inhabit- 
ant removing  from  district  before  the  money  is  voted  to  erect 
or  repair  school-house,  is  not  liable  for  the  tax.* 

§  214.  Tax — Maine. — A  district  cannot  be  formed  so  as  to 
possess  corporate  powers,  except  by  vote  of  a  town.5  An  as- 
sessment was  sustained,  though  the  clerk  did  not  certify  to  the 
assessors  the  vote  of  the  district  ;*  where  assessors  of  a  town 
assess  a  tax  in  pursuance  of  a  vote  of  the  district,  and  the  dis- 
trict is  not  formed  by  a  vote  of  a  town,  the  assessment  is  ille- 
gal.7 An  action  cannot  be  maintained  against  a  town  for  the 
assessment  and  collection  of  an  illegal  school-district  tax.8  If 
the  intention  of  the  voters  of  a  school  district  to  raise  a  sum  of 
money  to  build  a  district  school-house  is  apparent  upon  their 
records,  it  is  sufficient  to  authorize  the  assessment  and  collec- 
tion of  the  amount.9  The  mere  refusal  by  the  inhabitants  of  a 
school  district  to  vote  any  particular  sum  of  money  for  a  given 
purpose  will  not  confer  jurisdiction  upon  the  town  as  for  a  dis- 
agreement, under  the  act  of  1850,  ch.  193,  §  12. 10  A  tax  assessed 


1  Jenkins  v.  Andover,  103  Mass.  94. 

2  Bacon  v.  Sch.  Dist.  No.  13,  97  Mass.  421. 

3  C ashing  Y.  Inhabitants,  10  Mete.  (Mass.)  508. 
*Savary  v.  Sch.  D.,  12  Mete.  (Mass.)  178. 

s  Tucker  T.  Wentworth,  35  Me.  393. 


'Smyth  v.  Titcomb,  31  Me.  272. 
i  Tucker  v.  Wentworth,  35  Me.  393. 
STrafton  v.  Alfred,  15  Me.  258. 
•Soper  y.  Sch.  Dist.  No.  9,  28  Me.  193. 
i°  Power*  v.  Sanford,  39  Me.  183. 


240 


PUBLIC   SCHOOL   LAW. 


under  a  vote  to  "remove  and  repair  the  old  school-house"  is 
valid,  although  the  school-house  was  removed  from  another 
district.1  Tax  collector  cannot  decide  that  the  law  is  unconsti- 
tutional, or  refuse  to  do  his  duty,  and  must  collect  the  school 
taxes  as  well  as  the  taxes  of  the  town.2  The  statutes  exempt 
the  assessors  of  a  town,  levying  a  tax  on  a  school  district,  from 
personal  liability  when  they  act  with  faithfulness,  and  the  dis- 
trict is  not  liable  for  errors  of  the  town.3  Where  municipal 
officers  may  locate  site  on  failure  of  district  to  do  so  within 
sixty  days  after  vote,  they  can  only  expend  the  amount  voted.* 

§215.  Tax —Michigan. — Where  the  school  board  failed 
to  certify  to  the  township  clerk  in  time  for  the  supervisor  to 
spread  it  on  his  roll,  the  assessment  may  be  made  the  succeed- 
ing year,  under  §  5090.5  The  township  public  school  of  Long 
Rapids  includes  the  territory  of  Montmorency  county,  and  this 
applies  to  taxes.6  Where  an  injunction  is  asked  to  restrain  the 
collection  of  a  school  tax  irregularly  assessed,  the  school  district 
is  a  necessary  party  ;7  and  a  tax  on  only  a  part  of  a  district  is 
void.8  Where  school  moneys  are  received  by  treasurer  of  city 
board  of  education,  they  are  at  once  payable  to  the  proper 
depository.9 

§  216.  Tax — Minnesota. — The  lease  of  building  for  school 
purposes  does  not  give  the  owner  thereof  the  benefit  of  exemp- 
tion from  taxation  ;10  the  act  of  1860  requires  that  voters  must 
determine  the  number  of  houses,  the  sites,  and  the  sum  to  be 
raised,  before  the  tax.11 

§  217.   Tax — Mississippi. — A  statute  authorizing  levy  by 


1  Tozier  v.  Sch.  Dist.  No.  2,  39  Me.  556. 

2  Smyth  v.  Titcomb,  31  Me.  272. 
8  Powers  v.  Sanford,  39  Me.  183. 
4Oarleton  v.  Newman,  77  Me.  408. 
6\Vilcox  v.  Tp.  Eagje,  (Mich.)  45  N.  W.  987. 
8  Johnson  v.  Cathro,  51  Mich.  80. 


7FolkertB  v.  Power,  42  Mich.  283. 

8  Auditor  v.  McArthur,  49  N.  W.  592. 

9  Port  Huron  Bd.  Ed.  v.  Runnels,  57  Mich.  46. 
10  State  v.  Bell,  43  Minn.  344. 

"State  T.  St.  Anthony  10  Minn.  433. 


TAX  — MISSOURI.  241 


board  of  supervisors  of  county  for  school  purposes,  but  which 
does  not  include  a  town  which  is  a  separate  school  district,  is 
not  thereby  unconstitutional.1  In  Marion  county,  the  levy  was 
limited  to  13  mills,  3  of  which  are  for  school  purposes,  but 
county  levy  may  be  15  where  county  owes  debts;  teachers' 
warrants  are  county  debts,  and  to  pay  them  the  levy  may  be  in- 
creased to  15  mills.2  A  petition  for  a  mandamus  to  compel 
the  board  of  supervisors  to  levy  a  tax  for  the  erection  of 
school-houses,  must  define  the  sub-district  where  erected.8  A 
tax  on  liquor  licenses  or  privileges  is  not  "  money  received  for 
license"  which  must  be  used  for  free  schools.* 

§  218.  Tax  —  Missouri. — A  building  used  in  part  for  a 
school-house  and  in  part  for  other  purposes,  is  not  exempt.5 
The  merchant  taxes  on  stock  on  hand  are  property  taxes,  and 
the  merchandise  is  taxable  for  school  purposes.8  Where  county 
clerk  did  not  extend  school  tax,  under  act  1867,  on  the  assess- 
ment books,  there  can  be  no  recovery  on  tax  bill,  under  back- 
tax  law.7  Under  Laws  1885,  p.  246,  the  duty  of  county  clerk 
is  merely  to  extend  and  apportion  the  amounts  of  revenue  upon 
the  property  assessed  for  each  school  district.8  Where  an  acad- 
emy taught  higher  branches  and  a  small  tuition  fee  was  charged 
when  necessary,  and  poor  children  were  admitted  free,  and  the 
trustees  were  authorized  to  receive  all  the  school  moneys  due 
that  town  and  the  commons  attached,  the  tax  levied  under  stat- 
ute authorizing  same  for  academy  was  legal.9  Four  years'  laches 
in  attacking  irregularity  of  formation  of  district  will  bar  relief 
from  taxes  levied,  where  that  is  the  objection.10  Mandamus  will 


i Bordeaux  v.  Meridian  L.  &  L  Co.,  (Miss.) 

7  So.  296. 

aCowart  v.  Taxworth,  (Miss.)  7  So.  350. 
•Jarvis  v.  Warren  Co.,  49  Mies.  603.     (Rev. 

Code,  §2053;  Laws  1870,  ch.ll,  g32.) 
*Portwood  v.  Baekett,  64  Miss.  213. 

-16     ' 


«Wyman  v.  St.  Louis,  17  Mo.  335. 
'State  v.  Tracey,  (Mo.)  6  S.  W.  709. 

7  State  Y.  Harper,  11  Mo.  App.  301. 

8  Sen.  Dist.  v.  Wickereham,  34  Mo.  App.  337. 
estate  v.  Vaughan,  (Mo.)  12  S.  W.  507. 

10  Stamper  v.  Roberts,  ( Mo.)  3  S.  W.  214. 


242 


PUBLIC   SCHOOL   LAW. 


not  lie  to  compel  a  county  court  to  rescind  an  order  prohibiting 
the  county  clerk  from  assessing  and  extending  a  school  tax  ;x 
and  county  court  has  no  control  over  the  county  clerk  in  that 
matter.1  A  tax  levied  under  Const.  1875,  art.  10,  §  11,  prior  to 
May  24,  1877,  was  void,  legislation  being  necessary  ;2  and  de- 
fendant is  not  estopped  because  he  did  not  endeavor  to  restrain 
the  enforcement  of  the  levy.2  From  1875  to  1877,  taxes  for 
school  in  district  could  not  exceed  40  cents  on  $100.  And  un- 
der act  of  1877,  notice  is  required  to  make  election  under  the 
act  valid,  to  increase  levy  over  40c.3  It  is  improper  to  unite 
taxes  for  school  purposes  and  building  purposes  into  one  levy.* 
Before  a  constable  can  distrain  for  school  tax,  he  must  make  a 
demand  upon  the  person  liable.5  Taxes  should  be  distributed 
according  to  law  in  force  when  distributed.6  Taxes  for  "  school 
purposes  "  cannot  be  levied  to  build  house  or  to  pay  indebted- 
ness, under  R.  S.  §  6880,  there  being  different  qualifications  pre- 
scribed for  voting  taxes  for  different  things  in  statutes.7  The 
apportionment  of  funds  derived  from  taxing  railroad  bed,  to  be 
distributed  pro  rata  to  districts,  is  not  unconstitutional.8  Under 
statute  of  1875,  railroad  taxes  are  applied  to  the  districts  when 
that  township  has  subscribed  to  the  railroad ;'  tax  for  building 
school-houses  cannot  be  levied  on  property  of  railroad.10  "Where 
party  paid  school  tax  for  1873  on  realty  within  extended  limits 
of  St.  Louis,  he  was  entitled,  under  act  of  1874,  to  have  the 
same  credited  on  school  tax  bill  for  1881,  notwithstanding 
changes  in  district.11 

§219.   Tax — Nebraska. — School  lands  which  have  been 


1  State  v.  Byers,  67  Mo.  706. 

2  State  v.  St.  L.  K.  C.  R.  R.  Co.,  74  Mo.  163. 
»  State  v.  R.  R.,  75  Mo.  526. 

<State  v.  R.  R.,  ( Mo.)  2  S.  W.  275. 
*  ( Rev.  Code  1855, 1439.)    Atkinson  v.  Amick, 
25  Mo.  404. 


6Sch.  Diet.  v.  Weber,  75  Mo.  558. 

7  State  v.  R.  R.,  83  Mo.  395. 

s/w  re  Tax  Apportionment,  78  Mo.  596. 

»  Sen.  Dist.  v.  Rhoads,  81  Mo.  473. 
10  State  v.  R.  R.,  90  Mo.  166. 
"State  v.  Schnecko,  11  Mo.  App.  165. 


TAX— NEW   HAMPSHIRE. 


243 


sold  on  credit,  are  subject  to  taxation;1  a  medical  college  is  ex- 
empt.8 Where,  a  few  days  before  the  annual  meeting,  two  and 
a  half  townships  were  added  to  district,  and  tax  voted,  and  a 
few  days  thereafter  a  new  district  was  formed  out  of  the  added 
territory,  but  the  tax  voted  was  paid  to  old  district,  the  new  dis- 
trict and  those  formed  out  of  it  could  recover  that  tax  back.3 
Boards  of  education  in  cities  of  the  first  class  have  only  power 
to  report  an  estimate ;  the  power  to  levy  a  tax  is  with  the  city 
council.*  The  certificate  of  county  superintendent  to  the  county 
clerk,  of  the  amount  due  from  one  district  to  another,  is  suffi- 
cient to  authorize  a  tax  on  the  district  indebted.5  A  tax  was 
held  to  be  leviable  upon  the  district  as  it  existed  at  the  time  of 
the  levy;6  and  the  district  into  which  the  two  and  one-half 
townships  had  been  organized  could  sue  the  former  district  for 
the  amount  collected  in  the  latter's  territory.6 

§  220.  Tax — New  Hampshire. — Statute  authorizing  an- 
nual town  meetings  to  direct  in  what  manner  the  school-money 
shall  be  assigned  to  the  school  districts  is  constitutional  ;7 
and  a  statute  authorizing  town  tax  to  erect  a  school  building, 
and  authorizing  a  perpetual  lease  of  the  same  to  an  academy 
corporation  for  school  purposes,  without  the  payment  of  rent,  is 
constitutional.8  Where  persons  not  liable  to  school  district 
tax  are  assessed,  they  should  make  application  for  an  abate- 
ment.9 The  statutes  1885  provide  for  abolishing  the  division 
of  towns  into  school  districts,  and  provide  for  an  appraisal  of 
the  property  of  the  abolished  districts,  and  a  remission  to  the 
tax -payers  of  that  district  of  its  value;  and  a  petition  fora 


1  Hagenbnch  v.  Reed,  3  Neb.  17. 
2 Omaha  M.  C.  T.  Rush,  (Neb.)  35  N.  W.  222. 
»Sch.  Dist.  v.  Sch.  Dist.,  13  Neb.  166. 
^State  v.  Mayor  etc.  of  Omaha,  7  Neb.  267. 
6B.  &  M.  R.  R.  R.  Co.  v.  Lancaster  Co.  Com- 
m'rs,  13  Neb.  324. 


«  Sch.  Dist.  No.  9  v.  Sch.  Dist.  No.  6, 9  Neb.  331. 
^ Sch.  Dist.  v.  Prentiss,  (N.  H.)  19  A.  1090. 
«Holt  T.  Town  Antrim,  (N.  H.)  9  A.  389. 
»Sch.  Dist.  T.  Oxford,  63  N.  H.  277. 


244  PUBLIC   SCHOOL  LAW. 

new  appraisal  will  be  refused.1  On  refusal  of  district  to  build 
or  repair  school -house,  it  devolves  on  the  selectmen  of  the 
town,  who  are  bound  to  assess  a  sufficient  tax  on  the  district 
for  this  purpose.8  Assessment  of  tax  to  build  a  school  on 
ground  that  is  private  property,  cannot  be  compelled.3  On 
Sept.  14,  1872,  a  district  voted  a  tax  to  build  a  school -house; 
Oct.  26,  18T2,  the  district  was  changed,  so  as  to  include  the 
dwelling  and  real  estate  of  plaintiff;  April,  1873,  said  tax  was 
then  assessed  upon  the  invoice  of  1873,  which  included  the 
plaintiff  and  his  property;  the  tax  was  legal.4  Section  1,  act 
of  Dec.  28, 1844,  includes  assessments  made  for  taxes  for  erec- 
tions and  repairs  of  school-houses  already  completed,  as  well  as 
those  required  to  be  made  for  taxes  raised  for  building  and  re- 
pairing such  house.5  Where  the  selectmen  of  the  two  towns  in 
which  a  school  district  is  organized  under  the  provisions  of 
Comp.  Stat,  167,  §  2,  erroneously  supposed  that  the  statute  re- 
quired a  tax  for  school-house  purposes  in  such  district  to  be 
assessed  in  each  town,  by  their  joint  action,  and  the  record  of 
the  assessment  was  accordingly  made  by  them  as  a  joint  board 
of  assessors,  it  cannot  be  amended  by  striking  out  the  names  of 
the  selectmen  of  one  of  the  two  towns,  so  as  to  make  it  an 
assessment  by  the  selectmen  of  the  other  ;6  and  a  tax  assessed 
for  school-house  purposes  by  the  boards  of  selectmen  of  the 
towns  in  which  a  new  district  is  situated,  acting  together  as  a 
joint  board,  is  illegal ;  the  assessment  should  be  made  under  the 
provisions  of  §  3  of  act  of  June  26,  1845,  and  not  of  the  act  of 
July  2,  1845.7  As  a  justification  for  assessing  a  school-house 
tax,  the  proceedings  of  the  school  district  at  which  it  was  voted 


i  Perry  v.  Town  Fitzwilliam,  64  N.  H.  289. 
» Blake  v.  Sturteyant,  12  N.  H.  567. 
"Loverin  v.  Sch.  Dist.,  (N.  H.)  14  A.  810. 
«Fifield  v.  Sweet,  56  N.  H.  433. 


6  Rogers  v.  Bowen,  42  N.  H.  102. 
«  Perkins  v.  Langmaid,  36  N.  H.  501. 
*  Perkins  T.  Langmaid,  34  N.  H.  315. 


TAX  — NEW  JERSEY.  245 


should  be  shown  by  the  records  of  the  district.1  The  clause  in 
the  statute  which  requires  the  selectmen  to  assess,  in  thirty  days 
after  the  clerk  of  the  district  shall  certify  to  them  the  sum,  is 
directory,  and  the  tax  will  be  legal,  though  not  assessed  within 
the  thirty  days.2  If  a  person  removes  for  a  temporary  purpose, 
with  an  intention  of  returning,  he  is  still  liable  to  taxation  as  an 
inhabitant  of  the  district.3 

§  221.  Tax — New  Jersey. — A  vote  at  a  town  meeting,  to 
raise  "all  that  the  law  will  allow  for  schools,"  is  deficient  in 
precision,  but  it  may  be  made  certain,  and  will  not  therefore 
render  the  assessment  void.4  A  tax  voted  by  the  inhabitants 
of  a  school  district,  under  laws  of  1851,  is  properly  assessed  on 
"  all  lands  liable  to  be  taxed  "  within  the  district,6  but  an  assess- 
ment by  inhabitants  of  a  district,  under  the  law  of  1851,  will  be 
set  aside  if  it  does  not  appear  that  ten  days'  notice  was  given  of 
the  time,  place,  and  purposes  of  the  meeting;  the  court  will 
presume  those  who  voted  were  legal  voters,  unless  the  contrary 
appears.  A  book  of  minutes  kept  for  trustees  by  the  town  su- 
perintendent may  be  received  as  evidence  of  their  acts.5  The 
act  of  1851,  regulating  public  schools,  is  not  in  force  in  the  town 
of  Belvidere.6  Where  there  was  an  illegal  tax  the  court  held 
that  ample  relief  could  be  afforded  the  prosecutors  by  setting 
aside  so  much  as  aggrieved  the  plaintiffs.7  The  trustees  are  not 
bound  to  comply  with  the  act  of  1851  in  assessing  the  cost  of  a 
school-house  under  the  act  of  18 62.8  The  title  of  a  trustee  to 
his  office  cannot  be  tried  in  suit  resisting  a  tax.9  The  board  of 
education  of  the  city  of  Newark  cannot  be  compelled  by  man- 


1  Rogers  v.  Bowen,  42  N.  H.  102. 

2  Johnson  v.  Dole,  3  N.  H.  328. 
*Bump  v.  Smith,  11  N.  H.  48. 

^State  T.  Middletown,  24  N.  J.L.^4Zab.)  124; 
State  v.  Sickles,  24  N.  J.  L.  (4  Zab.)  125. 


«  State  v.  Van  Winkle,  25  N.  J.  L.  (1  Dutch.)  73. 
«  State  v.  Belvidere,  25  N.  J.  L.  ( 1  Dutch.)  563. 

7  State  y.  Browning,  27  N.  J.  L.  ( 3  Dutch.)  527 

8  State  v.  Ryerson,  30  N.  J.  L.  268. 
•  State  T.  Donahay,  30  N.  J.  L.  404. 


246 


PUBLIC   SCHOOL   LAW. 


damns  to  disburse,  as  the  council  may  desire,  certain  moneys  ap- 
propriated for  the  schools.1  On  a  certiorari  to  set  aside  an 
illegal  assessment,  the  court  will  not  go  behind  the  certificate  to 
inquire  whether  the  trustees  were  legally  elected.2  When  a  tax 
for  a  school-house  is  ordered  to  be  assessed  under  the  act  of 
1851,  (Nix.  Dig.  739,)  the  sworn  certificate  by  the  trustees  to 
the  assessors  should  show  all  the  conditions  precedent  have  been 
performed.3  The  notice,  resolution,  and  the  certificate,  should 
show  that  the  conditions  precedent  have  been  complied  with.* 
The  certificate  of  the  trustees  of  a  district  for  the  raising  of 
money,  is  sufficient  as  to  notice  if  it  states  that  they  were  posted 
in  at  least  three  public  places  in  the  district  ;5  the  notice  and 
certificate  for  the  meeting  to  assess  a  tax  by  the  inhabitants 
must  state  the  purpose.6  Nix.  Dig.  879,  §  80,  requires  the  cer- 
tificate upon  which  a  school  tax  is  assessed  to  show  how  the 
money  ordered  to  be  raised  is  to  be  apportioned  ;7  the  certificate 
of  the  district  clerk  must  show  that  the  apportionment  was  made 
by  authority  of  the  voters,  to  render  the  tax  valid  ;8  and  the  cer- 
tificate of  meeting  directing  special  taxes  to  be  raised  by  taxa- 
tion must  show  apportionment  of  specific  amount  for  each  pur- 
pose, and  the  oath  of  clerk  attached  must  verify  all  the  material 
facts  stated.9  The  certificate  of  the  district  clerk  preliminary  to 
delivery  to  assessor  for  assessment  on  the  township  of  tax,  must 
show  that  all  the  conditions  precedent,  as  to  time,  place  and 
manner,  have  been  complied  with.10  School  taxes  are  to  be 
levied  for  the  fiscal  year  beginning  Sept.  1  succeeding  the  as- 
sessment.11 A  county  collector  cannot  set  off  funds  due  from 


1  Newark  v.  Bd.  Ed.,  30  N.  J.  L.  374. 

2  State  v.  Van  Winkle,  25  N.  J.  L.  ( 1  Dutch.)  73. 
SHardcastle  v.  State,  27  N.  J.  L.  (3  Dutch.) 

551:  State  v.  Hardcastle,  26  N.  J.  L.  (2 

Dutch.)  143. 

*  State  v.  Browning,  28  N.  J.  L.  ( 4  Dutch.)  556. 
estate  v.  Donahay,  30  N.  J.  L.  404. 


«  Stace  v.  Garrabrant,  32  N.  J.  L.  444. 

7  State  v.  Sullivan,  36  N.  J.  L.  89. 

8  State  v.  Duryea,  40  N.  J.  L.  266. 
»  State  v.  Padden,  44  N.  J.  L.  151. 

10 State  v.  Sch.  Dist.,  (N.  J.)  10  A.  191. 
11  State  v.  Sheridan,  42  N.  J.  L.  64. 


TAX  — NEW  YORK. 


247 


him  to  town  treasurer  for  school  funds,  by  claim  for  state  or 
county  taxes  due  from  town  treasurer  to  him.1  On  a  vote  for 
building  school-house  a  majority  of  those  voting  is  all  that  is 
necessary,  and  not  a  majority  of  all  the  residents  of  the  district.8 
Special  meetings  may  be  called  by  trustees  to  vote  for  improve- 
ments; the  term  "incidentals"  is  not  specific  enough.3  Where 
resolution  to  issue  bonds  for  building  school-house  provides 
they  should  be  payable  in  successive  years,  it  is  error  to  issue 
certificate  to  levy  it  all  in  one  year.* 

§222.  Tax  —  New  York. — Where  school  owned  by  relig- 
ious body  is  exempt,  it  is  immaterial  if  deed  is  in  name  of  pas- 
tor, if  held  for  that  use,  or  if  top  floor  is  occupied  temporarily 
by  teachers  in  charge  as  residence,  and  is  not  for  profit.6  It 
was  held,  under  act  of  1882,  which  provides  that  school  buildings 
used  exclusively  as  such  and  owned  exclusively  by  a  religious 
society  are  exempt  from  taxation,  that  a  school-house  was  ex- 
empt although  the  society  was  not  incorporated  until  after  the 
time  for  assessing  tax.5  If  the  trustees  of  a  district,  in  appor- 
tioning a  tax  voted  at  a  district  meeting  among  the  taxable  in- 
habitants of  the  district,  change  the  assessment,  they  should 
give  notice ;  but  the  omission  does  not  render  them  responsible 
as  trespassers.6  If  the  district  clerk,  in  giving  notice  of  a  dis- 
trict meeting  called  by  the  trustees,  prevents  some  from  attend- 
ing by  misrepresentations,  the  trustees  who  cause  the  tax  voted 
at  such  meeting  to  be  collected  are  not  trespassers  unless  they 
are  parties  to  the  fraud.6  A  district  meeting  voted  a  tax  for 
building  a  school-house  in  October,  and  voted  a  tax  at  a  special 
meeting  in  the  succeeding  February;  the  last-mentioned  vote 


i  State  v.  Sheridan,  45  N.  J.  L.  276. 
SGrandall  v.  Tre.,  51  N.  J.  L.  138. 
s State  v.  Cole,  (N.  J.)  18  A.  52. 
4 State  v.  Clark,  (N.  J.)  19  A.  462. 


« Church  St.  Monica  v.  City  N.  Y.,  55  N.  Y. 

Sup.  Ct.  160. 
6 Randall  v.  Smith,  1  Den.  (N.  Y.)  214. 


248  PUBLIC  SCHOOL  LAW. 

was  notwithstanding  a  legal  and  valid  one.1  A  district-school 
tax  is  valid,  though  it  is  assessed  and  the  tax  list  therefor  is 
made  out  by  the  trustees  after  the  expiration  of  one  month 
from  the  time  of  holding  the  district  meeting  at  which  it  was 
voted.2  A  district  tax  was  voted,  and  subsequently  the  tax  re- 
pealed ;  still  later,  the  vote  to  repeal  the  tax  was  itself  repealed, 
and  the  warrant  was  then  renewed  and  delivered  to  the  officer ; 
although  the  last  vote  revived  the  tax,  a  new  tax  list  should 
have  been  made  out  after  that  vote.3  It  is  no  objection  to  a 
tax  for  building  a  school-house,  that  other  districts  had  not  con- 
sented to  an  alteration  to  which  that  district  had  consented ;  nor 
that  the  notice  stated  the  meeting  was  to  be  held  "for  buying 
or  building  a  school-house,"  and  a  tax  was  voted  to  buy  a  house 
already  built ;  nor  that  the  quantity  of  land  or  the  site  was  not 
more  fully  designated.*  Where  defendants  in  trover  justified 
as  school-district  officers  under  a  warrant  for  the  collection  of  a 
school  tax,  and  they  were  chosen  at  an  annual  district  meeting 
held  by  adjournment  voted  at  the  annual  district  meeting  of 
the  preceding  year,  but  no  notice  was  given,  the  meeting  was  a 
legal  one.5  School-district  trustees,  in  justifying  under  a  tax 
warrant  issued  by  them,  are  not  bound  to  prove  that  the  dis- 
trict was  duly  organized."  Under  a  resolution  of  a  school-dis- 
trict meeting,  authorizing  the  trustees  to  erect  a  school-house  to 
cost  $400,  sell  the  old  house  and  collect  the  balance  by  tax,  the 
trustees  might  collect  the  balance  by  warrant.7  The  sum  voted 
for  building  a  school-house  must  be  precise  and  clear.8  An  as- 
sessment "  on  all  the  taxable  inhabitants  of  the  district,  agreea- 
bly to  the  levy  on  which  the  town  was  levied  the  preceding 


i  Randall  v.  Smith,  1  Den.  (N.  Y.)  214. 
*Gale  y.  Mead,  2  Den.  (N.  Y.)  160. 
»  Mead  v.  Gale,  2  Den.  (  N.  Y.)  232. 
*  Williams  v.  Larkin,  3  Den.  (N.  Y.)  114. 


6  Marchant  v.  Langworthy,  3  Den.  (  N.  Y. )  526. 
'Stevens  Y.  Newcomb,  4  Den.  (N.  Y.)  437. 
TTrumbull  v.  White,  5  Hill  (N.  Y.)  46. 
8 Robinson  v.  Dodge,  18  Johns.  (N.  Y.)  351. 


TAX— NEW  YORK. 


249 


year,"  the  tax  list  for  the  "preceding  year"  must  be  under- 
stood, according  to  the  general  law,  to  mean  the  year  ending 
on  the  1st  day  of  August.1  The  trustees  of  a  district  are  not  au- 
thorized by  a  vote  for  tax  for  building  a  school-house,  without 
specifying  the  sum  to  be  levied,  to  issue  their  warrants.8  Under 
the  act  Apr.  15,  1814,  the  freeholders  and  inhabitants  at  regu- 
lar meeting  must  vote  a  precise  and  definite  sum  as  a  tax  for 
building  a  school-house.8  Persons  not  inhabitants  of  a  town 
are  not  liable  to  be  taxed  for  the  support  of  common  schools  in 
that  town ;  and  the  trustees  who  issue  the  warrant,  and  col- 
lector, are  trespassers;3  the  trustees  issuing  an  erroneous  tax 
warrant  are  liable  in  trespass,  but  the  collector  is  not.4  An 
owner  of  land  not  occupied  by  him,  his  agent,  or  servant,  but 
in  the  actual  occupation  of  a  tenant,  is  not  a  "taxable  inhabit- 
ant"  within  the  meaning  of  the  act  of  1819.5  Where  the 
trustees  made  an  erroneous  apportionment  by  making  it  upon 
the  sum  voted  and  the  percentage  allowed  the  collector, 
they  were  not  liable  in  trespass,  nor  for  omitting  names  of 
some  of  the  inhabitants,  if  there  is  no  malafides;  the  rem- 
edy is  by  appeal  or  by  certiorari.8  A  school  district  col- 
lector may  levy  upon  any  goods  and  chattels  lawfully  in  the 
possession  of  the  person  liable  to  pay  the  tax,  although 
such  person  is  not  the  owner.7  A  school  -  district  warrant 
issued  subsequent  to  the  act  of  1831,  commanding  the  collector 
to  levy  a  tax  "in  the  same  manner  as  on  executions  issued  by 
justice  of  the  peace,"  is  void,  and  the  collector,  as  well  as  the 
trustees,  are  trespassers.8  A  party  cannot  object  to  the  validity 
of  a  warrant  for  school  tax  under  which  his  goods  are  sold, 


i  Ryder  v.  Cudderback,  12  Johns.  (N.  Y.)  412. 
^Kobinson  v.  Dodge,  18  Johns.  (N.  Y.)  351. 
sSnydam  v.  Keys,  13  Wend.  (N.  Y.)  444. 
*  Alexander  v.  Hoyt,  7  Wend.  (N.  Y.)  89. 


.  Thome,  8  Wend.  (N.  Y.)  518. 
6Easton  v.  Callender,  11  Wend.  (N.  Y.)  91. 
^Keeler  v.  Chichester,  13  Wend.  N.  Y.)  629. 
8 Clark  v.  Hallock,  16  Wend.  (N.  Y.)  607. 


250 


PUBLIC   SCHOOL   LAW. 


because  that,  after  the  delivery  of  the  warrant  to  the  collector, 
the  sum  is  reduced  by  one  of  the  trustees.1  Where  the  trustees 
have  been  sued  in  trespass  and  the  tax-money  recovered  back, 
they  cannot  relevy  the  tax.2  An  account  of  costs,  etc.,  of  school 
officers,  under  Laws  1847,  ch.  172,  §  2,  need  not  be  submitted  to 
the  taxable  inhabitants  of  the  district  previous  to  its  being  laid 
before  the  board  of  supervisors  for  their  action.3  Where  super- 
visors have  jurisdiction  of  a  claim  of  district  school  officers  for 
costs  and  expenses,  their  determination  is  conclusive.*  Under 
the  Rev.  Stat.,  trustees  have  the  power  to  issue  a  new  warrant 
for  collection  from  delinquents  ;5  and  in  an  action  of  trover,  for 
property  distrained,  the  plaintiff  giving  parol  evidence  of  the 
rate-bills  and  warrants,  cannot  object  to  the  defendants  relying 
upon  such  rate-bills  and  warrants,  as  a  justification  for  the  trover 
and  conversion,  for  the  reason  that  the  defendants  have  not 
produced  them.5  The  taxable  inhabitants  of  a  school  district 
cannot  legally  repeal  a  resolution  imposing  a  tax,  after  the 
greater  part  of  the  tax  has  been  collected.6  Where  the  rate-bill 
made  out  by  the  trustees  of  a  school  district  for  teacher's  wages, 
is  erroneous,  for  a  longer  time  than  the  teacher  taught,  the 
warrant  is  not  void,  but  appeal  may  be  had  to  the  state  super- 
intendent.7 A  district  vote  is  necessary  before  assessing  the 
uncollected  arrearages  of  a  quarter  on  a  subsequent  quarter  ;& 
but  the  trustees  of  a  school  district  are  not  authorized  by  the 
act  of  Mch.  26,  1849,  to  lay  a  tax,  without  submitting  their  esti- 
mates for  a  district  vote.8  When  indigent  persons  are  exempted 
by  the  trustees  from  the  payment  of  teachers'  wages,  the  amount 


iFolsom  v.  Streeter,  24  Wend.  (N.  Y.)  266. 
2Benjamin  v.  Hull,  17  Wend.  (N.  Y.)  437. 
3 People  v.  Trs.   Sen.  Diet.  No.  13,  8  How. 

(N.  Y.)  Pr.  125. 
4  People  v.  Van  Leuven,  8  How.  (N.  Y.)  Pr. 

358:   People  v.  Greene,  10  id.  468;   People 

v.  Trs.  Sen.  Dist.  No.  13, 8  id.  125;  6  id.  333. 

But  see  People  v.  Snyder,  10  id.  143. 


e Seaman  v.  Benson,  4  Barb.  (N.  Y.)  444. 
6 Smith  v.  Dillingham,  4  Barb.  (N.  Y.)  25. 
•Finch  v.  Cleveland,  10  Barb.  (N.  Y.)  290. 
8£nos  v.  Hulett,  13  Barb.  (N.  Y.)  111. 


TAX— NEW  YORK.  251 


thereof  must  be  assessed  on  other  persons.1  A.  resided  on  a 
homestead  farm  in  one  district,  but  improved  another  lot  not 
adjacent  to  his  farm,  in  another  district;  under  Laws  1847, 
ch.  480,  §  87,  A.  was  taxable  for  lot  in  district  where  situated.2 
In  Dec.  1857  there  was  no  law  authorizing  two  of  the  three 
trustees  to  apportion  school  taxes,  or  to  issue  a  warrant  for 
their  collection  ;3  but  where  two  trustees  of  a  school  district 
issue  a  tax  warrant ;  the  presence  of  the  third  trustee  will  be 
presumed.*  A  tax  warrant  valid  on  its  face,  issued  by  the 
trustees  in  pursuance  of  an  order  of  the  supervisors,  will  justify 
the  collector,  though  the  order  is  void.5  School  taxes  are  to  be 
assessed  and  levied  in  the  same  manner  as  those  for  town, 
county  and  state  purposes.6  Under  Laws  1864,  ch.  555,  tit.  7, 
art.  7,  §  69,  when  the  trustees  assess  property  not  upon  such 
roll,  or  change  any  of  the  assessment  thereon,  they  are  re- 
quired to  give  notice  of  time  and  place.7  A  school  collector 
selling  property  for  an  unpaid  tax  of  the  owner,  without  post- 
ing the  notice  required,  is  a  trespasser,  and  the  sale  is  void ;  the 
owner,  however,  can  only  recover  the  amount  paid  by  him  to 
regain  the  property.8  The  law  authorizing  vote  of  tax  to 
supply  deficiency  for  non-collectible  tax  does  not  give  trustee 
power  to  include  the  unpaid  tax  in  this  levy,  and  if  he  does  the 
whole  is  void  and  the  tax-payer  may  sue  the  trustee  in  tres- 
pass.9 School  trustees  may  maintain  action  of  assumpsit  for 
tax.10  A  county  treasurer  must  pay  the  delinquent  school  tax, 
and  a  defect  in  title  of  new  site  for  school-house,  preventing  a 
conveyance,  will  not  excuse  non-payment.11  Colored  orphan 


lEnos  v.  Hnlett,  13  Barb.  (N.  Y.)  111. 
SMyer  v.  Crispell,  28  Barb.  (N.  Y.)  54. 
s Harding  v.  Head,  35  Barb.  (N.  Y.)  35. 
*Doolittle  v.  Doolittle,  31  Barb.  (N.  Y.)  312; 

McCoy  v.  Curtice,  9  Wend.  (N.  Y.)  17. 
SDoolittle  v.  Doolittle,  31  Barb.  (N.  Y.)  312. 


«Chadwick  v.  Crapsey,  35  N.  Y.  196. 

i  Jewell  v.  Van  Steenburgh,  58  N.  Y.  85. 

s  Bedell  v.  Barnes,  17  Hun  (N.  Y.)  353. 

» Haley  v.  Whittiev.  53  Hun  (N.  Y.)  119. 
i°Torrey  v.  Willed  55  Hun  (N.  Y.)  78. 
"People  v.  Hegeman,  (N.  Y.)  4N.  Y.  S.  351. 


252 


PUBLIC   SCHOOL  LAW. 


asylum  of  New  York  formed  under  Laws  1838,  as  place  of 
refuge  for  colored  orphans,  is  not  exempt  from  taxation  as  a 
-school-house.1 

§223.  Tax—  North  Carolina.—  Under  the  act  of  1844, 
ch.  36,  a  regular  scholar  is  not  bound  to  work  on  a  road  during 
a  holiday  or  temporary  recess  occurring  within  the  period  of 
the  school  session.2  Act  of  1889  authorizing  state  and  county 
-school  tax  paid  by  citizens  of  Greensboro  to  be  paid  by  county 
treasurer  to  city  treasurer  of  Greensboro,  and  by  him  applied, 
is  unconstitutional.3  The  constitution  requires  a  majority  of 
the  qualified  voters  of  the  town  to  vote  in  favor  of  school  bonds 
and  tax  ;  an  act  that  authorized  the  issue  on  a  vote  of  majority 
of  those  voting  when  they  are  not  the  majority  of  the  qualified 
voters  is  unconstitutional.4 

§  224.  Tax  —  Ohio.  —  Land  once  taxed  for  a  school-house  is 
not  subject  to  a  second  tax  for  the  same  purpose  until  the  ex- 
piration of  three  years.5  The  mode  of  making  estimates  in 
-cities  of  class  of  Cincinnati  is  not  affected  by  territory  being 
&dded  for  school  purposes.6  Where  board  of  education  had 
-certified  the  estimate  to  county  auditor,  who  placed  same  on 
the  tax  list  in  a  reduced  form,  in  a  suit  to  compel  placing  the 
•estimate  certified  on  the  list,  brought  by  tax-payer,  the  burden 
was  on  him  to  show  that  the  board  did  not  consent  to  the 
reduced  form.7  Where  a  law  was  claimed  to  be  general,  and 
not  of  uniform  operation  throughout  the  state,  and  a  party  at- 
tempted to  enjoin  the  collection  of  tax  thereunder,  and  there 
was  no  showing  made  that  he  had  not  been  enjoying  and  ac- 
cepting the  benefits  of  the  law,  it  is  too  late  to  question  the  law.8 


i  Assc'n  Co.  O.  v.  City  N.  Y.,  12  N.  E.  279. 
2Estes  v.  Oxford,  4  Jones  (N.  C.)  L.  474. 
» City  Greensboro  v.  Hodgin,  106  N.  C.  182. 
•*Markham  v.  Durham  G.  Sch.,  (N.C.)2  S.E.  40. 


6  Baker  v.  Black,  6  Ohio,  53. 
« State  v.  Brewster,  39  Ohio  St.  653. 
i  State  v.  Cappeller,  39  Ohio  St.  455. 
s  Clarke  v.  Bd.  Ed.,  (Ohio)  9  N.  E.  790. 


TAX  —  PENNSYLVANIA. 


§225.  Tax  —  Oregon.  —  Taxable  property  for  school  taxes- 
is  assessed  on  the  same  principles  as  govern  general  taxes.1 

§226.  Tax  —  Pennsylvania.  —  A  county  poor-house  is  ex- 
empt.2 The  act  of  1866,  exempting  certain  real  estate  "from 
taxation  for  state  purposes,"  did  not  exempt  it  for  school  pur- 
poses.3 A  supplemental  act  to  act  incorporation  of  Wagner 
Free  Institute  of  Science,  provided  for  exemption  from  taxation 
for  cabinet  collection,  land  on  which  it  was  erected,  and  gifts,. 
bequests  and  endowments,  other  real  estate  subsequently  con- 
veyed, the  rents  of  which  were  used  for  purposes  under  original 
charter  were  not  exempt;*  the  statute  1873  repealed  the  act 
granting  exemption  to  Wagner  Free  Institute  so  far  as  the  land 
attached  was  concerned.5  Section  1  of  the  act  of  1835  does 
not  limit  the  power  of  the  inhabitants  of  a  borough  or  town- 
ship to  assess  for  school  purposes.6  The  duplicate  and  warrant 
of  the  school  directors  justify  a  collector,  after  a  demand  and  a 
refusal,  to  levy  and  sell.7  Section  4  of  the  act  entitled  "An  act 
to  consolidate  and  amend  the  several  acts  relative  to  a  general 
system  of  education  by  common  schools,"  is  directory  as  to- 
time  ;  and  if  the  levy  is  omitted  it  may  be  performed  within  a 
reasonable  time  thereafter.7  Money  payable  under  articles  of 
agreement,  and  bearing  interest,  is  taxable  for  school  purposes.* 
Under  the  appropriation  act  of  Apr.  11,  1848,  the  abatement  of 
25  per  cent,  was  to  be  limited  to  the  taxes  assessed  for  the 
school  years  of  1848  and  1849,  and  was  not  to  extend  to  taxes 
which  had  been  assessed  for  the  school  year  commencing  on 
the  first  Monday  of  June,  1850,  but  which  had  been  advanced 
or  paid  into  the  treasury  before  that  day.9  Excessive  tax  for 


1  Stephens  v.  Sch.  Dist.,  6  Oreg.  353. 

*  Schuylkill  v.  North  Manheim,  42  Pa.  St.  21. 
8Couyngham  v.  Sch.  Dist.  App.,  77  Pa.  St.  265. 

*  Appeal  Wagner  Free  Inst.,  ( Pa.)  11  A.  402. 
•Appeal  Wagner  Free  Inst.,  132  Pa.  St.  612. 


« Wilson  v.  Lewlstown,  1  Watts  &  S.  (Pa.) 

428. 

TQearhart  v.  Dixon,  1  Pa.  St.  224. 
»Vaegtly  v.  Sch.  Dire.,  1  Pa.  St.  330. 
"Commonwealth  v.  Praim,  16  Pa.  St.  163. 


254 


PUBLIC   SCHOOL   LAW. 


building  that  is  not  needed  will  be  enjoined  as  to  such,  excess.1 
The  statute  must  be  strictly  complied  with  in  order  to  increase 
indebtedness  of  district  beyond  two  per  cent,  of  its  valuation, 
under  act  of  1874.  Notice  and  statement  showing  indebted- 
ness must  be  filed.2  A  collector  may  enforce  payment  of  school 
taxes  by  suit,  after  the  expiration  of  his  warrant.3  The  board 
of  school  directors  may  issue  a  warrant  for  school  taxes,  return- 
able in  a  shorter  period  than  two  years.8  Property  held  for 
non-resident  minors  is  taxable  in  the  county  where  the  guardian 
resides,  under  the  act  of  Apr.  22,  1846  ;*  but  where  a  minor 
resides  with  her  father  in  one  district  and  her  guardian  in 
another,  in  the  same  county,  the  property  is  taxable  for  the 
district  wherein  the  minor  lives.*  Under  the  school  law  of 
May  8, 1854,  the  power  of  taxation  is  committed  to  the  school 
directors,  but  without  any  right  of  appeal.5  The  act  of  Mch.  25, 
1864,  §  7,  to  levy  a  tax  uon  all  property,  etc.,  subject  to  taxation 
for  state  and  county  purposes,"  did  not  authorize  directors  to 
tax  property  not  included  in  the  adjusted  valuation  of  the 
assessors  and  commissioners.6  Where  a  school  board  levy  a 
tax,  it  is  to  be  collected  under  a  warrant  issued  by  the  presi- 
dent and  countersigned  by  the  secretary  ;7  and  if  signed  by  two 
justices  of  the  peace  instead  of  by  the  president  and  secretary, 
it  is  of  no  validity.7  Mandamus  was  refused  to  compel  central 
board  to  appropriate  to  sub-district  for  improvements,  and  add 
the  same  as  for  next  year,  and  certify  same  to  council  of  Pitts- 
burgh.8 

§  227.    Tax — Rhode  Island. — The  provision  of  Gen.  Stat, 
ch.  58,  §  13,  opening  uall  the  public  schools  in  the  state  to  the 


5  Wharton  v.  Sch.  Dirs.,  42  Pa.  St.  358. 
e  Shirk  v.  Bucher,  53  Pa.  St.  94. 
THilbish  v.  Hower,  58  Pa.  St.  93. 
8  Commonwealth  T.  Shaw,  96  Pa.  St.  268. 


peal,  103  Pa.  St.  356. 
2Witberop  v.  Titusville  Sch.  Bd.,  7  Pa.  Co. 

Ct.  Rep.  451. 

"McCracken  v.  Elder,  34  Pa.  St.  239. 
«West  Chester  v.  Darlington,  38  Pa.  St.  157. 


TAX  —  TENNESSEE. 


255 


children  of  officers  and  soldiers,"  etc.,  "without  any  cost,  or  ex- 
pense, or  taxes,  or  other  charges  imposed  for  purposes  of  public 
education,"  does  not  exempt  the  estate  of  such  officer  or  sol- 
dier from  taxes  levied  for  school  purposes.1  A  school  district 
can  raise  money  by  taxation  provided  the  amount  shall  be  ap- 
proved by  the  school  committee  of  the  town ;  this  need  not 
precede  the  voting  of  the  tax.2  Objection  that  powers  of  dis- 
trict do  not  authorize  the  tax,  must  be  taken  by  appeal.8 
When  assessors  are  to  be  appointed,  by  the  school  commis- 
sioner, under  Rev.  Stat.,  ch.  64,  §  1,  to  assess  a  tax,  the  school 
district  must  have  notice.* 

§228.  Tax  —  South  Carolina.  —  Under  Constitution  and 
Acts  1882  and  1883,  the  city  of  Spartanburg  became  a  sepa- 
rate corporation,  authorized  to  issue  bonds  to  build  school- 
houses  in  that  city,  and  the  auditor  may  be  compelled  to 
compute  the  amount  and  levy  the  same  on  the  property.5 

§229.  Tax— Tennessee.— Act  of  Feb.  28,  1870,  confer- 
ring upon  the  board  of  president  and  directors  of  the  Cleveland 
public  schools  power  to  levy  a  school  tax,  is  unconstitutional.8 
Although  a  county,  without  special  statute,  cannot,  after  levy- 
ing taxes  for  general  county  purposes  in  amount  equal  to  the 
state  tax,  make  additional  levy,  yet  a  levy  of  an  equal  amount 
for  school  purposes  is  valid,  under  act  of  1873.7  Under  act  of 
March  22,  1877,  county  courts  cannot  levy  a  school  tax  at  a 
higher  rate  than  the  state  tax,  but  the  illegality  goes  only  to 
the  excess  ;8  and  it  is  immaterial  that  a  levy  was  made  in  July 
instead  of  at  the  first  quarterly  term  of  court.8 


1  Carpenter  v.  Hopkinton  Sch.  Trs.,  12 R.I.  574. 
2Seabury  v.  Rowland,  ( R.  I.)  8  A.  341 ;  Holt's 

Appeal,  5  R.  I.  603. 

aseabury  v.  Howland,  (R.  I.)  8  A.  341. 
*Peckham  v.  Bicknell,  11  R.  I.  596. 
6  State  v.  Bacon,  (S.  C.)  9  S.  E.  765. 


6Waterhonse  v.  Cleveland  Pub.  Sch.  Bd.,  9 

Baxter  ( Tenn.)  398. 
7N.  C.  etc.  R.  R.  Co.  v.  Franklin  Co..  5  Lea 

(  Tenn.)  707. 
8 Bright  T.  Halloman,  7  Lea  (Tenn.)  309. 


256 


PUBLIC   SCHOOL   LAW. 


§  230.  Tax — Texas. — Land  owned  and  used  by  proprietor 
of  private  school  adjacent  thereto,  for  supplying  table  with 
vegetables,  is  not  exempt.1  Legislature  could  not  grant  power 
to  levy  taxes  for  schools  except  as  provided  in  constitution.2 
Whenever  an  incorporated  town  assumes  control  of  its  public 
schools,  it  may  levy  a  school  tax  thereafter  if  voted  for  by  two- 
thirds  of  property  tax-payers ;  this  does  not  mean  two-thirds  of 
those  voting,  but  two-thirds  of  the  qualified  voters  that  are  tax- 
payers.2 The  act  of  1876,  appropriating  the  udog  tax"  to  the 
county  free  schools,  is  not  unconstitutional.3  Constitution,  art. 
9,  §  3,  authorizes  the  legislature  to  confer  upon  district  boards 
of  education  power  to  levy  the  school  tax,  and  also  those  con- 
ferred by  act  of  April  24,  1871.*  The  legislature  may  delegate 
the  power  to  district  the  state  for  educational  purposes.*  The 
one-per-cent.  school  tax,  levied  under  §  5  of  the  act  of  April  24, 
1871,  was  not  repealed  by  the  act  of  April  22,  1871,  even 
though  the  former  act  may  be  prior  in  the  true  date  of  its  pas- 
sage.* If  a  board  of  school  directors  levy  taxes  for  school  pur- 
poses for  that  year,  their  successors  cannot  levy  a  different  school 
tax  for  that  year.5  The  legislature  may  confer  upon  boards  of 
Bchool  directors  power  to  assess  taxes  for  school  purposes.8  The 
section  of  act  Aug.  13,  1870,  requiring  the  boards  of  school  di- 
rectors to  levy  an  ad  valorem  tax  not  exceeding  one  per  cent., 
applied  to  assessments  made  in  1871.6  Where  act  authorized 
Bchool  tax  of  one-fourth  of  one  per  cent.,  and  a  city  adopted  an 
amendment  to  its  charter  allowing  one-half  of  one  per  cent.,  and 
the  statute  forbade  any  amendment  contrary  to  constitution  and 
laws,  the  amendment  was  invalid.7  "  Shall  such  an  amount  be 


i  St.  Ed.  College  v.  Morris,  17  S.  W.  512. 
•Ft.  Worth  v.  Davie,  57  Tex.  225. 
*Ex parte  Cooper,  3  Tex.  App.  489. 
*Kinney  v.  Zimpleman,  36  Tex.  554. 


6  Oliver  v.  Carsner,  39  Tex.  396. 
estate  v.  Bremond,  38  Tex.  116. 

7  Jodon  v.  Brenham,  57  Tex.  655. 


TAX  — VERMONT.  257 


raised  by  taxation  ?  "  is  not  the  same  as  "  whether  or  not  the  city 
council  should  be  allowed  to  levy  a  tax  of  one-fourth  of  one  per 
cent. ; "  and  a  vote  for  latter  would  not  authorize  levy  under 
law  providing  for  the  former.1 

§  231.  Tax — Utah. — Under  act  of  Jan.  18th,  1865,  no  pro- 
vision is  made  for  adjusting  the  amount  of  the  tax  to  the  neces- 
sities of  the  district ;  no  appeal  is  allowed  the  tax-payers  for  the 
equalization  of  assessments,  and  the  trustees  are  neither  required 
to  take  oath  nor  to  give  bond  for  the  faithful  performance  of 
their  duty,  and  the  law  is  void,  and  collection  will  be  restrained  ;2 
and  the  act  of  1865  for  school  tax,  not  providing  for  equality  of 
tax,  or  impartial  assessment,  or  faithful  disbursement,  is  void.8 
Extending  boundaries  of  district  so  as  to  take  in  railroad  prop- 
erty and  tax  the  same  for  school-house  twenty-five  miles  distant, 
by  action  of  county  court,  is  authorized.8  Where  a  vote  of  a 
levy  of  one  per  cent,  was  voted,  the  county  officials  cannot  ex- 
tend the  levy  for  the  following  year  upon  that  basis,  where  it 
would  raise  three  times  the  amount  needed.* 

§  232.  Tax — Virginia. — School  taxes  must  be  paid  in  law- 
ful money  of  the  United  States,  and  not  in  states'  tax  receivable 
coupons.5 

§233.  Tax — Vermont.  —  The  buildings  owned  by  St 
Johnsbury  Academy,  a  private  educational  institution,  includ- 
ing club  house  and  residence  of  students  and  faculty,  and  part 
rented,  is  exempt.'  "Public  schools,"  in  laws  exempting  from 
taxation,  is  construed  to  mean  public  in  sense  of  colleges  and 
academies.8  To  justify  taking  property,  as  collector  of  a  school 
district,  all  the  conditions  precedent  must  be  shown  to  have 


iFt.  Worth  v.  Davis,  57  Tex.  225. 

2Kerr  v.  Woolley,  3  Utah,  456. 

*King  v.  Utah  C.  K.  R.,  (  Utah)  22  P.  158. 

—  17 


< Lowe  v.  Hardy,  (Utah)  26  P.  982. 
6Greenhow  v.  Vashorn,  81  Va.  336. 
6Willard  v.  Pike,  ( Vt.)  9  A.  907. 


258  PUBLIC   SCHOOL  LAW. 

been  complied  with.1  A  collector  of  a  school  -  district  tax  is 
liable  in  trespass,  if  the  district  proceeded  illegally  in  voting ; 
and  this,  though  his  warrant  and  rate-bill  be,  on  their  face, 
regular.2  The  limitation  to  a  maximum  amount,  of  the  sum  to 
be  raised  in  a  school  district,  imports  sufficient  certainty.3 
Under  the  act  of  Nov.  1827  and  act  1833,  the  voters  in  dis- 
trict could  assess  a  tax  for  the  support  of  a  school  upon  such 
scholars  only  as  actually  attended  the  school.8  A  committee  is 
justified  in  assessing  individual's  real  estate  situated  in  the  dis- 
trict, for  a  value  proportioned  to  the  value  of  all  his  lands  on 
the  town  list  where  statute  provides  no  means  of  separation ;  a 
vote  to  raise  such  a  tax  need  not  specify  ratio  and  amount.* 
In  assessing  a  school-district  tax  the  committee  cannot  assess 
upon  lands  which  are  wholly  omitted  in  the  grand  list,  though 
they  know  them  to  be  within  the  district.5  If  an  inhabitant 
has  no  list  in  the  school  district,  his  name  need  not  appear  in 
the  rate-bill  of  a  tax  laid  by  such  district.6  Since  the  act  of 
1854  (Laws  1854,  44),  authorizing  school  districts  to  elect  a 
treasurer,  the  warrant  for  school-district  tax  should  require  the 
money  to  be  paid  to  that  officer.6  A  resident  of  a  school  dis- 
trict, on  the  1st  of  April,  assessed  as  owner  of  personalty,  and 
whose  list  is  designated  by  the  listers  as  belonging  to  such  dis- 
trict, is  liable  to  pay  such  district  taxes,  though  he  removes 
from  the  district.7  The  prudential  committee  of  the  district  is 
alone  authorized  by  law  to  assess  and  certify  the  tax  for  remov- 
ing a  school-house.8  A  school  district  has  a  right  to  assess 
taxes  to  pay  for  defending  suits  against  a  tax  collector,  for  col- 
lecting taxes.9  The  omission  of  the  officer  to  enter  upon  the 


1  Bates  v.  Hazeltine,  1  Vt.  81. 

2  Waters  Y.  Daines,  4  Vt.  601. 
s  Brown  v.  Hoadly,  12  Vt.  472. 
*  Adams  v.  Hyde,  27  Vt.  221. 
*Moss  v.  Hindes,  29  Vt  188. 


e  Bull  v.  Griffith.  30  Vt.  273. 

» Woodward  v.  French,  31  Vt.  337;  Walker  v. 

Miner,  32  Vt.  769. 
s  Johnson  v.  Sanderson,  34  Vt.  94. 
'Johnson  v.  Colburn,  36  Vt.  693. 


TAX  —  WASHINGTON. 


259 


warrant  the  time  when  he  received  the  same,  does  not  invali- 
date ;x  if  the  warrant  was  sufficient,  no  subsequent  alteration 
in  it  can  invalidate  the  acts  done  under  it  ;J  proceedings  of  pru- 
dential committee  in  assessing  taxes,  and  in  making  out  and 
delivering  a  rate-bill  to  the  tax  collector  of  the  district,  will 
justify  that  officer  in  serving  the  warrant.1  Parol  evidence  was 
admissible  to  show  the  true  time  when  the  rate-bill  and  certifi- 
cate were  made ;  and  clerical  error  will  not  vitiate,  and  parol 
evidence  may  explain  an  altered  warrant.1  A  vote  of  a  school 
district  to  sustain  a  school  for  a  definite  period  is  not  equiva- 
lent to  a  vote  to  defray  the  expenses  of  that  school.2  Under 
acts  of  1868,  No.  38,  a  district  enlarged  in  1873  cannot  vote, 
in  1874,  that  a  tax  be  assessed  on  the  list  of  1872.3  The 
listers  and  assessors,  being  unable  to  determine  the  boundaries 
of  a  district,  set  the  lands*therein  to  an  adjoining  district,  and 
the  collector  of  the  latter  distrained  for  tax  therein ;  this  was 
held  to  be  illegal.*'  Where  selectmen  were  required  to  assess 
annually  a  school  tax  previous  to  Jan.  1,  without  specifying 
the  list,  it  should  be  assessed  on  the  list  last  completed  and  in 
force  at  time  of  assessment.5  That  a  tax  shall  not  be  assessed 
until  the  money  is  required,  means  that  the  assessment  may  be 
made  long  enough  beforehand  to  raise  the  money  needed.8 

§234.  Tax  —  Washington. — Where  the  boundaries  of  a 
city  of  10,000,  constituting  one  district,  are  enlarged,  the  funds 
of  the  enlarged  district  are  charged  with  maintenance  of  the 
school  in  the  whole  district,  and  the  board  at  its  meeting  next 
preceding  the  annual  tax  levy  shall  fix  the  amount  required  for 
school  purposes.7 


1  Goodwin  v.  Perkins,  39  Vt.  598. 

2  Adams  v.  Crowell,  40  Vt.  31. 
SRassam  v.  Edwards,  49  Vt.  7. 
*Hubbard  v.  Newton,  52  Vt.  346. 


*Sprague  v.  Abbott,  58  Vt.  331. 
«Brock  v.  Bruce,  ( Vt.)  10  A.  93. 
7  City  Seattle  Sch.  D.  v.  Bd.  City  Comm'rs, 
(Wash.)  28  P.  376. 


260  PUBLIC   SCHOOL  LAW. 

§  235.  Tax — West  Virginia. — Four  months'  school  voted 
for  means  only  that  year.1  A  sheriff  cannot  pay  over  school 
taxes  in  his  hands  to  his  successor  without  order  of  board  edu- 
cation.8 

§  236.  Tax — Wisconsin. — Trustees  authorized  under  a  spe- 
cial act  to  vote  a  tax  to  be  assessed  by  the  trustees,  had  the 
power  to  make  a  valuation  to  levy  the  assessment.3  A  town 
treasurer  paid  to  the  treasurer  of  a  school  district  in  his  town 
the  delinquent  tax,  and  for  which  the  town  had  settled  with  the 
county.  Subsequently  the  amount  so  credited  to  the  town  was 
charged  back  to  and  paid  by  it ;  the  town  could  not  recover 
the  amount  from  the  district  if  the  tax  was  in  fact  legal ;  but 
this  tax  having  been  invalid,  and  the  town  treasurer  not  having 
knowledge,  the  town  was  entitled  to  recover  the  amount  so  paid.4 
Under  R.  S.,  §  776,  when  school  taxes  are  voted  by  town  they 
may  be  levied  without  regard  to  the  fact  that  the  money  is  to 
be  applied  to  benefit  of  specific  districts  in  the  town.5 

§  237.  Tax  exemption. — In  the  case  of  St.  Mary^s  College 
v.  Growl,  Treasurer,  <&c.,  10  Kas.  448,  it  was  held  that  "Under 
the  laws  of  this  state  all  property  not  expressly  exempted  is 
subjected  to  taxation.  (Gen.  Stat.  1019,  ch.  107,  §  1.)  And  no 
property  is  exempt  because  it  is  used  for  educational  purposes 
unless  it  is  exclusively  so  used.  (Const.,  art.  11,  §  1.)  Property 
used  partially  for  educational  purposes  and  partially  for  some 
other  purpose  is  not  exempt.  Even  property  used  mainly  for 
educational  purposes,  but  not  exclusively,  is  not  exempt.  In 
the  present  case  we  shall  not  discuss  separately  the  taxability  of 
each  article  or  piece  of  property  claimed  to  be  exempt,  but  shall 


i  Wells  v.  Lincoln  Bd.  Ed.,  20  W.  Va.  157. 
« Spencer  D.  Bd.  Ed.  v.  Cain,  28  W.  Va.  758. 
•Richardson v.  Sheldon,  1  Finn.  ( Wis. T.)  624. 


«Ripon  v.  Joint  Sch.  Diet.,  17  Wis.  83. 
*Griggs  v.  St  C.  Co.,  27  F.  R.  333. 


TAX   EXEMPTION.  261 


discuss  more  especially  the  taxability  of  the  inclosed  arable  and 
cultivated  land ;  for  if  any  portion  of  the  plaintiff's  property  is 
exempt  from  taxation  it  is  certainly  that  portion.  This  prop- 
erty was  used  for  at  least  three  purposes :  1st.  It  was  used  for 
the  purpose  of  teaching  certain  Indians  agriculture ;  2d.  It  was 
used  for  the  purpose  of  raising  food  for  a  large  amount  of  live 
stock  kept  on  the  farm,  and  food  for  said  Indians,  their  tutors, 
etc.;  3d.  It  was  used  for  the  purpose  of  raising  produce  to  sell. 
The  proceeds  of  the  sales,  however,  were  used  to  feed  and  clothe 
the  Indians,  to  feed  and  clothe  'the  employes  in  their  training,' 
and  to  feed  and  clothe  'the  missionaries  among  them.'  We  sup- 
pose it  will  be  conceded  that  if  the  property  were  used  exclu- 
sively for  the  purpose  of  teaching  the  Indians  agriculture,  it 
would  be  exempt.  But  even  this  may  not  be  certain,  for  agri- 
culture was  hardly  considered  a  branch  of  education  when  our 
constitution  was  framed.  For  the  purposes  of  this  case  it  may 
also  be  conceded  that  if  the  property  were  used  exclusively  for 
teaching  the  Indians  agriculture,  and  for  raising  food  for  them 
and  the  professors,  and  the  necessary  stock  kept  on  the  farm,  it 
would  still  be  exempt.  But  when  it  is  used  to  raise  food  for 
stock  not  necessary  to  be  kept  on  the  farm,  and  to  raise  produce 
to  sell,  no  further  concessions  in  favor  of  its  exemption  can  be 
made.  Such  use  goes  at  least  one  step  beyond  where  conces- 
sions can  be  made  in  favor  of  its  exemption.  It  is  solely  the 
use  of  the  property  which  determines  whether  the ,  property  is 
exempt  or  not.  (Washburn  College  v.  Shawnee  County,  8  Kas. 
344.)  It  makes  no  difference  who  owns  the  property,  nor  who 
uses  it.  Property  used  exclusively  for  educational  purposes  is 
exempt,  whoever  may  own  it,  or  whoever  may  use  it.  Property 
not  used  exclusively  for  educational  purposes,  (if  otherwise  tax- 


262  PUBLIC   SCHOOL  LAW. 

able,)  is  not  exempt,  whoever  may  own  it,  or  whoever  may  use 
it.  And  this  use  must  be  direct  and  immediate,  and  not  indirect 
or  remote.  (Cincinnati  College  v.  State,  19  Ohio,  110.)  If  a 
farm  be  used  for  the  purpose  of  raising  produce  to  sell  and  get 
money  to  carry  on  a  school,  it  will  not  be  exempt.  The  use  for 
educational  purposes  is  in  such  a  case  too  remote.  The  imme- 
diate or  primary  object  for  cultivating  the  farm  in  such  a  case 
is  to  obtain  the  produce ;  the  secondary  object  is  to  obtain  the 
money  that  the  produce  will  bring ;  and  the  remote  object  is  to 
aid  and  foster  the  school.  The  farm  itself,  in  such  a  case,  is 
not  used  in  teaching  anything,  or  in  illustrating  or  explaining 
anything,  as  books,  charts,  apparatus,  etc.,  are.  It  is  not  used 
as  a  necessary  shelter  and  protection  for  the  students,  their 
books,  apparatus,  etc.,  as  a  school-house  always  is.  And  it  is 
not  used  as  a  necessary  site  for  a  school-house,  as  school-house 
grounds  always  are.  In  fact,  it  answers  no  direct  or  immediate 
educational  purpose  or  necessity.  It  is  no  part  or  portion  of 
the  school,  and  is  not  used  as  such.  It  therefore  does  not  come 
within  the  constitutional  exemption." 

§238.  Teacher's  certificate. — There  need  be  no  second 
examination  of  a  teacher  upon  the  granting  of  a  renewal  cer- 
tificate, the  original  certificate  having  expired  by  limitation.1 
In  an  action  against  the  superintendent  of  schools  for  illegally 
revoking  a  teacher's  certificate,  the  plaintiff  is  not  compelled 
to  show  personal  hatred  or  ill-will ;  but  if  the  defendant  acted 
rashly,  wickedly  and  wantonly  in  revoking  the  certificate,  the 
jury  may  infer  malice  ;2  and  where  a  county  superintendent 
maliciously  withholds  teacher's  certificate,  he  is  liable  in  dam- 
ages.3 In  an  action  against  citizens  for  a  conspiracy  in  a 

i  Doyle  v.  Sch.  D.,  36  111.  App.  653.  I    8Elmore  V.  Overton,  104  Ind.  548. 

»Love  v.  Moore,  45  111.  12. 


TEACHER'S   CERTIFICATE. 


263 


groundless  remonstrance  to  the  school  directors  against  ap- 
pointing a  teacher,  his  having  no  certificate  would  not  prevent 
his  recovery  of  actual  damages.1  The  county  superintendent 
canceling  a  teacher's  certificate  without  concurrence  of  the 
local  trustees  does  not  deprive  him  of  compensation  if  he  still 
teaches  to  the  end  of  the  term.8  A  town  superintendent  of 
common  schools  (N.  Y.)  has  no  right,  under  act  of  1847,  to 
annul  a  certificate  given  by  his  predecessor  until  at  least  ten 
days'  previous  notice  in  writing  to  the  teacher  and  to  the  trus- 
tees of  the  district  in  which  he  is  employed.3  It  is  no  defense 
to  an  action  brought  by  the  teacher  against  the  district  to  re- 
cover his  wages,  that  the  certificate  was  granted  without  any 
examination  having  been  in  fact  made  by  the  town  superin- 
tendent.* A  certificate  of  qualification  cannot  be  impeached  in 
an  action  brought  by  a  teacher  for  salary  due,  nor  will  it  be  in- 
validated by  the  improper  introduction  of  testimony  going  to 
show  that  for  the  certificate  in  question  he  was  not  in  fact  ex- 
amined.5 Where  a  teacher  had  a  certificate,  but  was  discharged 
for  incompetency,  and  he  sued  for  service,  and  he  was  asked 
the  question,  "What  would  3£  pounds  of  butter  cost  at  11 J 
cents  a  pound  ? "  this  question  was  ruled  out,  as  the  certificate 
was  conclusive  as  to  his  right  to  teach.* 

§239.  Teacher's  certificate.  —  In  Yt.  the  certificate  of 
qualification  by  town  superintendent  need  not  contain  any  state- 
ment as  to  the  teacher's  good  moral  character.7  Under  111.  Rev. 
Stat.,  ch.  122,  §  52,  the  certificate  need  not  state  that  an  exam- 
ination was  had  ;  it  is  in  the  nature  of  a  commission,  and  cannot 
be  attacked  collaterally.8  In  Yt.,  in  an  action  by  a  teacher 


i  Vanarsdale  v.  Laverty,  69  Pa.  St.  103. 
« Jamison  v.  Senter,  56  Miss.  194. 
sFinch  v.  Cleveland,  10  Barb.  (N.  Y.)  290. 
*  George  v.  Sch.  Dist.  No.  8,  20  Vt.  495. 


6 Doyle  v.  Sch.  D.,  36  HI.  App.  653. 

« Doyle  v.  Sch.  Dist,  36  111.  App.  654. 

T  Crosby  v.  Sch.  Dist.,  35  Vt.  623. 

9  Union  Sch.  Dist.  etc.  v.  Sterricker,  86  111.  595. 


264  PUBLIC   SCHOOL   LAW. 

against  a  district  for  breach  of  contract,  it  need  not  be  averred 
that  the  plaintiff  had  procured  from  the  town  superintendent  a 
certificate  of  qualification,  as  required  by  Comp.  Stat.,  ch.  20, 
§  15.1  In  an  action  by  a  teacher  against  a -town,  proof  that  he 
was  employed  by  the  agent  and  the  services  were  rendered  as 
agreed, prima  fade,  entitles  the  plaintiff  to  recover;  and  if  the 
town  would  avail  themselves  of  the  want  of  the  certificates  re- 
quired by  the  act  of  1834,  ch.  129,  Me.,  they  must  show  that 
fact.8  Although  a  teacher  of  a  public  school  may  not  be  entitled 
to  recover  her  wages  without  the  certificate  required  by  the 
statute,  yet  the  town  alone  is  entitled  to  raise  that  objection ; 
and  if  money  has  been  paid  by  the  town  to  the  school  agent, 
for  the  teacher,  he  will  hold  it  to  her  use,  and  cannot  object  to 
the  want  of  such  certificate.8  The  certificate  of  a  majority  of 
the  superintending  school  committee  of  a  town,  produced  by 
the  school  master  to  the  agent  employing  him,  is  a  valid  certifi- 
cate, under  Kev.  Stat.,  ch.  17,  although  that  majority  did  not  act 
together  in  the  examination.*  Under  Me.  Kev.  Stat.,  ch.  11, 
§  41,  requiring  the  teacher's  certificate  to  be  obtained  from  the 
superintending  committee  of  the  town  "where  the  school-house 
of  such  district  is  situated,  or  has  been  located,  or  where  the 
school  is  kept,"  where  the  last  vote  of  union  district  lying  partly 
in  F.  and  partly  in  0.,  and  having  a  house  in  each  town,  fixed 
the  location  of  the  house  in  F.,  and  the  school  was  kept  in  F.,  the 
teacher  properly  obtained  the  certificate  from  the  committee  of 
F.6  In  a  suit  for  money  paid  to  teacher  not  having  a  certificate, 
it  was  a  good  defense  that  the  teacher  was  entitled  to  the  certifi- 
cate, which  had  been  withheld  by  inadvertence  ;8  and  when 


iDoyan  v.  Sch.  Dist,  35  Vt.  520. 
*Rolfe  v.  Cooper,  20  Me.  154. 
•Dore  v.  Billings,  26  Me.  56. 


<  Stevens  r.  Fassett,  27  Me.  266. 
6  Brown  v.  Chesterville,  63  Me.  241. 
'Sch.  Dist.  v.  Brown,  55  Vt.  61. 


TEACHER'S   CERTIFICATE.  265 

teacher  had  no  certificate  for  part  of  the  term,  the  board  cannot 
Bet  off  the  money  paid  during  that  time,  in  an  action  for  com- 
pensation for  time  when  she  had  a  certificate.1 

§  240.  Teacher's  certificate. — When  board  of  education 
in  district  in  111.,  of  2,000  population  or  more,  examine  and 
employ  a  teacher,  he  can  recover  salary  though  he  has  not  re- 
ceived from  county  superintendent  his  certificate,  which  is  re- 
quired by  another  statute  ;2  a  pupil  or  parent  cannot  contest  the 
right  of  teacher  for  want  of  proper  certificate.8  Failure  to  file 
state  normal  certificate  until  after  contract  for  teaching  has 
been  made  is  no  defense  for  services  rendered  after  it  is  filed.* 
Mandamus  will  not  lie  by  one  consenting,  to  compel  a  suit  on 
an  assessor's  bond  for  paying  a  salary  of  a  teacher  not  qualified 
legally,  but  employed  as  a  necessity,  and  the  board  employing 
being  satisfied.5  School  committee  may  employ  a  teacher  when 
the  teacher  employed  by  the  prudential  committee  fails  to  ob- 
tain a  certificate  and  after  the  lapse  of  two  months  they  inform 
the  school  committee  that  they  will  not  engage  another.  (G.  S., 
ch.  39.)'  The  statute  is  satisfied  if  the  certificate  is  obtained  on 
the  evening  of  the  first  day,  especially  where  the  delay  has 
been  at  the  request  of  the  superintendent  ;7  so  if  a  certificate 
was  made  out  at  the  proper  time,  although  by  accident  it  was 
not  put  into  the  teacher's  hands  ;8  and  one  who  at  the  time  she 
signs  a  contract  to  teach  has  a  certificate  from  the  county  super- 
intendent can  recover,  though  at  the  time  of  application  to  the 
board,  and  date  of  contract,  she  had  no  certificate.9  Where  a 
teacher  taught  school  for  five  weeks  before  her  certificate  ex- 
pired, and  six  weeks  afterwards  without  obtaining  a  new  certifi- 


1  Dodge  Co.  Sch.  Dist.  v.  Bates,  13  Neb.  52. 
sRuemster  v.  Bd.  Ed.,  (111.)  24  N.  E.  609. 
SKidder  v.  Chellis,  59  N.  H.  473. 
< Smith  v.  Sch.  Dist.,  (Mich.)  37  N.  W.  567. 
^State  v.  Eisley,  (Mich.)  37  N.  W.  570. 


« Sch.  Dist.  v.  Mowry,  9  Allen  (Mass.)  94. 
7  Paul  v.  Sch.  Dist.,  28  Vt.  575. 
SBlanchard  v.  Sch.  Dist.,  29  Vt.  433. 
•Sch,  Dist.  v.  Stilley,  36  111.  App.  133. 


266  PUBLIC   SCHOOL  LAW. 

cate,  held,  that  she  might  recover  for  the  services  performed 
both  before  and  after  the  expiration  of  the  certificate.1  The 
plaintiff's  minor  daughter  contracted  to  teach  for  eleven  weeks, 
and  taught  one  week  without  a  certificate ;  then  she  obtained  a 
certificate  and  taught  another  week,  with  the  approbation  of 
the  committee,  at  which  time  she  quit  on  account  of  unjustifia- 
ble conduct  of  the  committee ;  the  continuing  after  she  had  ob- 
tained her  certificate  was  equivalent  to  making  a  new  contract 
on  the  same  terms  as  the  original ;  not  making  the  entries  in 
the  school  register  required,  at  the  close  of  the  school,  did  not 
prevent  recovery.2 

§  241.  Teacher's  certificate. — In  a  suit  for  services,  the 
objection  that  the  plaintiff  had  no  certificate  as  required  by 
N.  J.  Rev.,  p.  1077,  §  33,  comes  too  late  if  made  after  the  evi- 
dence is  closed  ;3  and  the  plaintiff's  right  to  recover  is  not 
barred  by  the  fact  that  he  was  employed  by  the  trustees  of 
a  district  afterwards  consolidated  with  another  district.3  A 
school  teacher,  under  the  direction  of  the  superintendent,  ex- 
amined after  she  had  begun  the  school,  received  an  ante-dated 
certificate ;  after  teaching  a  few  weeks  she  was  dismissed ;  she 
could  recover  her  wages.*  In  the  absence  of  evidence  that  a 
teacher  having  a  certificate  has  been  discharged  for  lack  of 
qualifications,  if  subsequently  employed  in  another  ward  and  in 
a  higher  grade  she  is  entitled  to  pay  for  her  services,  whether 
examined  or  not.5  Under  Mo.  Rev.  Code  1855,  1430,  §5, 
div.  4,  although  the  approval  of  the  commissioner  was  not  in- 
dorsed in  writing  on  the  certificate,  yet  where  he  signified  his 
approval  in  words  and  declared  the  teacher  competent,  and 


iHolman  v.  School  Diet.,  34  Vt.  270. 
'Scott  v.  Set.  Dist.  No.  2,  46  Vt.  452. 
•Sproul  v.  Smith,  40  N.  J.  L.  314. 


'Wells  v.  Sch.  Dist.,  41  Vt.  353. 

6  Common  wealth  v.  Lyndall,  2  Brews.  (Pa.> 

425. 


TEACHER'S   CERTIFICATE. 


267 


gave  his  sanction  to  the  previous  arrangement  of  the  school^ 
in  the  presence  of  the  trustees,  the  trustees  could  not  be  held 
liable  for  the  amount  paid  the  teacher  from  the  time  of  the  ex- 
piration of  his  certificate.1  Notwithstanding  Gen.  St.  Colo.r 
§  3055,  one  who  is  employed  by  the  board  to  teach  when,  as 
they  are  aware,  she  has  no  license,  but  who  shortly  afterwards 
procures  one,  may  maintain  an  action  against  the  board  for 
compensation.2  A  teacher's  certificate  from  the  school  commis- 
sioner is  prima  facie  evidence  of  qualification,  and  it  devolves- 
upon  directors  to  prove  incompetency  or  neglect  of  duty  when 
they  have  dismissed  him  for  either  of  such  causes.3 

§  242.  Teacher's  certificate. — A  contract  by  a  common- 
school  district  to  hire  a  teacher  not  having  a  certificate  of  quali- 
fication, is  void ;  and  a  complaint  by  the  teacher  should  aver 
possession  of  the  certificate.4  A  warrant  issued  to  teacher  who 
has  not  the  certificate  required  by  Dak.  Stat.,  is  void,  and  non- 
negotiable  so  as  to  cut  off  defense,  and  township  is  not  liable 
for  services  rendered.5  Where  teacher  failed,  on  examination, 
to  obtain  a  renewal  of  certificate,  and  kept  on  teaching  as  ordered 
by  a  director  who  had  no  power  to  bind  the  district,  he  could 
not  recover  for  teaching  after  failure.6  The  secretary  of  board 
of  examiners,  Mich.,  has  not  power,  four  days  after  teacher  fails 
to  pass  at  public  examination,  to  grant  such  teacher  a  special 
certificate,  and  the  teacher  cannot  complain  of  third  party  as- 
sisting at  the  public  examination  unless  it  is  shown  that  was 
cause  of  failure  to  pass.7  A  contract  employing  a  teacher  who 
has  not  a  certificate  as  provided  for  by  the  school  law,  is  void, 
and  is  not  susceptible  of  subsequent  ratification ;  and  where, 


1Barnhart  v.  Bodenhammer,  31  Mo.  319. 

2  Hotz  v.  Sch.  Dist.  No.  9,  (Colo.  App.)  27  P.  15. 

'Neville  v.  Sch.  Dirs.,  36  111.  71. 

*Ryan  v.  Dak.  Co.  Sch.  Dist.,  27  Minn.  433. 


6  Goose  River  Bk.  v.  Willow  Lake  Sch.  Tp 

( N.  D.)  44  N.  W.  1002. 

«Devoe  v.  Sch.  Dist.,  (  Mich.)  43  N.  W.  1062. 
'Lee  v.  Sch.  Dist.,  (Mich.)  38  N.  W.  867. 


268  PUBLIC   SCHOOL   LAW. 

after  having  taught  three  months,  he  obtained  the  certificate, 
and  the  directors  then  made  a  new  contract  with  him,  whereby 
he  was  to  teach  three  months  at  a  salary  of  twice  the  amount 
per  month  he  was  to  receive  under  the  first  contract,  both  con- 
tracts were  void.1  To  entitle  a  teacher  to  recover  on  a  contract 
to  teach,  he  must  prove  he  had  a  certificate  at  time  of  employ- 
ment.2 A  trustee  of  the  owners  of  a  building  leased  to  the  di- 
rectors of  schools  is  liable  for  a  trespass,  although  the  school 
has  no  funds,  and  the  teacher  has  not  been  examined  for  that 
year,  if  such  teacher  has  a  certificate,  and  has  been  examined 
on  a  previous  occasion.3  A  school  committee  is  not  confined  to 
moral  character  and  literary  qualities  of  a  teacher  in  determin- 
ing his  fitness.*  In  Tenn.,  the  common-school  commissioners 
are  indictable  for  employing  a  teacher  who  has  no  examiner's 
certificate  of  his  competency,  as  required  by  §  1019  of  the  code.5 
§243.  Teacher's  certificate. — Every  teacher  is  required 
to  obtain  a  certificate  of  his  qualifications  before  he  opens  his 
school,  and  circumstances  cannot  supersede  the  statute,  and  it 
cannot  be  waived.6  A  certificate  granted  to  a  teacher  may  be 
anulled  by  the  city  superintendent  of  common  schools  for  the 
city  and  county  of  New  York.7  Where  a  town  superintendent 
refused  a  certificate  on  the  ground  of  moral  character,  and  on 
appeal  having  been  taken  to  the  state  superintendent  it  was 
ordered  that  the  town  superintendent  examine  into  her  literary 
qualifications,  and  if  satisfied  with  them,  that  he  license  her,  by 
a  tender  of  a  certificate  of  literary  qualification,  the  town  super- 
intendent has  discharged  his  duty,  moral  qualification  being,  by 
appeal,  left  to  the  state  superintendent  ;8  and  from  the  refusal 


i  Wells  T.  People,  71  111.  732. 

2Stevenson  v.  Sch.  Disk,  87  111.  255;  Jenness 

v.  Sch.  Disk,  12  Minn.  448. 
8Ki:igsley  v.  Sch.  Dirs.,  2  Pa.  St.  28. 
4 Sch.  Disk  v.  Mowry,  9  Allen  (Mass.)  94. 


6 Robinson  v.  State,  2  Coldw.  (Tenn.)  181. 
«  Goodrich  v.  Fairfax,  26  Vk  115;  Baker  v.Sch. 
D.,  12  Vt.  192;  Welch  v.  Brown.  30  Vt.  586. 
T  People  v.  Bd.  Ed.,  17  Barb.  (N.  Y.)  299. 
8 People  v.  Masters,  21  Barb.  (N.  Y.)  252. 


TEACHER'S   CERTIFICATE. 


269 


for  want  of  literary  qualifications,  no  appeal  lies  to  the  state 
superintendent.1  One  who  has  not  a  certificate  of  the  super- 
intending committee,  required  by  law,  cannot  recover  any  com- 
pensation for  his  services.8  A  judgment  in  favor  of  the  teacher 
will  be  restrained  by  injunction,  at  a  suit  of  any  person  inter- 
ested as  a  tax-payer  within  the  district,  suing  in  behalf  of  him- 
self and  others ;  a  school  district  cannot  waive  the  law  requiring 
the  school  master  to  produce  the  certificate  of  the  superintending 
committee,  or  to  dispense  with  the  certificate  ;2  and  in  an  action 
by  a  teacher,  under  the  act  of  1857,  111.,  it  must  be  alleged  that 
the  certificate  of  qualification  was  exhibited  to  the  directors  be- 
fore his  employment  ;8  and  the  same  was  held  under  law  of 
1849.*  Under  Law  of  111.,  1849,  a  teacher  must  present  to  the 
school  directors,  before  the  commencement  of  the  school,  his 
certificate.5  The  power  given  board  of  education  of  Galesburg 
(111.)  to  appoint  teachers,  does  not  authorize  appointment  of 
teachers  not  possessing  statutory  qualifications.6  In  111.,  the 
law  prohibiting  paying  teachers  not  having  certificates  applies 
only  to  those  districts  acting  under  the  general  law.7  In  111.,  a 
school  board  cannot  employ  a  teacher  who  has  not,  at  that  time, 
the  certificate  required  by  law  ;8  and  one  who  renders  services 
as  a  teacher,  without  the  certificate  required  by  law,  cannot  re- 
cover.9 Under  §  28,  Ind.  K.  S.  1876,  p.  780,  a  contract  for  the 
employment  of  an  unlicensed  teacher  is  void,  and  is  not  ratified 
by  the  subsequent  issuance  of  a  license  to  the  teacher.10  A 
county  superintendent  cannot  sue  to  restrain  a  person  from 
teaching,  the  treasurer  of  the  town  from  paying  him,  and  the 


i  People  v.  Masters,  21  Barb.  (N.  Y.)  252. 
*Barr  v.  Denieton,  19  N.  H.  170.  • 

•Botkin  v.  Osborne,  39  111.  101. 
*  Smith  v.  Curry,  16  111.  147. 
«  Casey  v.  Baldridge,  15  111.  65. 
•Galesbnrg  Ed.  Bd.  v.  Arnold,  112  HI.  11. 


?Knenster  v.  Bd.  Ed.,  134  HI.  165. 
8  Sch.  Dirs.  v.  Jennings,  10  111.  App.  643. 
•  Harrison  Tp.  v.  Conrad,  26  Ind.  337. 
10 Putnam  v.  Irvington,  69  Ind.  80;  Butler  v. 
Haines,  79  Ind.  575. 


270  PUBLIC   SCHOOL   LAW. 

director  from  permitting  the  use  of  the  school-house,  because 
such  party  has  no  certificate ;  but  residents  of  the  district  might 
maintain  such  a  bill.1  A  certificate  of  a  majority  of  the  super- 
intending school  committee  as  to  the  qualifications  of  a  teacher, 
is  to  be  regarded  aaprima  facie  evidence  that  they  have  per- 
formed all  their  duty  ;2  but  if  a  member  has  not  been  notified, 
a  certificate  by  the  majority  is  void.8  A  teacher  cannot  recover 
pay  for  teaching  without  the  certificate  of  the  superintending 
school  committee,  even  though  all  the  members  wantonly  refuse 
to  examine  him.2 

§  244.  Teacher's  certificate. — In  the  case  of  Goose  River 
Bank  v.  Willow  Lake  S.  Tp.,  44  N.  W.  Kep.  (N.  D.)  1002,  it  was 
held:  "Every  contract  relating  to  the  employment  of  a  teacher 
Tvho  does  not  hold  a  lawful  certificate  of  qualification,  is  void  by 
the  express  terms  of  the  statute,  and  every  warrant  issued  in 
payment  of  services  of  such  teacher  is  without  consideration, 
:and  void.  School  township  warrants  are  not  negotiable  instru- 
ments, in  the  sense  that  their  negotiation  will  cut  off  defenses  to 
them  existing  against  them  in  the  hands  of  the  payee.  The 
officers  of  a  school  township  cannot  estop  the  township  by  a 
representation,  express  or  implied,  that  the  facts  to  authorize 
the  issue  of  a  lawful  warrant  exist.  Where  a  contract  is  ex- 
pressly prohibited  or  declared  void  by  statute,  retention  of  the 
fruits  of  such  contract  will  not  subject  a  municipality  to  liability 
under  the  contract  or  on  a  quantum  meruit.  A  person  who 
assists  a  public  officer  in  depriving  the  public  of  the  benefits  of 
a  statutory  protection  designed  to  guard  the  people  against  unfit 
and  incompetent  teachers  has  no  standing  in  court,  and  his  as- 
signee will  receive  no  greater  consideration.  .  .  . 

J  Perkins  v.  Wolf,  17  Iowa,  238.  |    2  Jackson  v.  Hampden,  20  Me.  37. 


TEACHER'S   CERTIFICATE.  271 

"There  is  no  force  in  the  position  that  the  defendant  having 
received  the  benefit  of  the  teacher's  service,  is  liable.  Such  a 
doctrine  would  defeat  the  policy  of  the  law,  which  is  to  give 
the  people  of  the  state  the  benefit  of  trained  and  competent 
teachers.  The  law  recognizes  only  one  evidence  that  that 
policy  has  been  regarded  —  the  certificate  of  qualification.  If 
the  defendant  could  be  made  liable  by  the  mere  receipt  of  the 
benefit  of  the  services  rendered,  the  law  prohibiting  the  em- 
ployment of  teachers  without  certificates,  and  declaring  void  all 
contracts  made  in  contravention  of  that  provision,  would  be,  in 
effect,  repealed,  and  the  protection  of  the  people  against  incom- 
petent and  unfit  teachers,  which  such  statute  was  enacted  to 
accomplish,  would  be  destroyed.  Where  a  contract  is  void  be- 
cause of  the  express  declaration  of  a  statute,  or  because  pro- 
hibited in  terms,  the  retention  by  a  municipality  of  the  fruits  of 
such  a  contract  will  not  subject  it  to  liability,  either  under  the 
contract  or  upon  a  quantum  meruit.  (Dickinson  v.  City  of 
Poughkeepsie,  75  N.  Y.  65 ;  McBrien  v.  City  of  Grand 
Rapids,  22  K  W.  Kep.  206;  Thomas  v.  Richmond,  12  Wall. 
349  ;  Argenti  v.  San  Francisco,  16  Cal.  255 ;  City  of  Litch- 
field  v.  Ballon,  114  U.  S.  190 ;  5  Sup.  Ct.  Kep.  820.  See  also 
Tube-works  Co.  v.  City  of  Chamberlain,  [Dak.]  37  K  W. 
Rep.  762.)  This  is  particularly  true  in  a  case  like  the  one  at 
bar,  where  no  person  can  teach  without  the  certificate,  without 
being  actually  or  legally  in  collusion  with  local  officers  to  de- 
feat a  wise  and  salutary  statute,  enacted  as  a  barrier  against  the 
employment  of  unqualified  teachers.  The  person  who  teaches 
without  the  certificate  has  violated  the  letter  and  spirit  of  the 
law.  The  wrong  done  is  without  remedy.  The  people  who 
have  thus  had  this  barrier  torn  from  about  them  have  no  re- 


272  PUBLIC   SCHOOL   LAW. 

dress.  Shall  the  wrong-doer  be  compensated  for  aiding  the 
school  township  officers  in  breaking  down  this  barrier,  thus  de- 
priving the  people  of  the  protection  of  this  important  law  ?  In 
this  connection  the  language  of  the  court  in  Thomas  v.  Rich- 
mond, 12  Wall.  349,  is  very  applicable  :  'The  issuing  of  bills  as 
a  currency  by  such  a  corporation,  without  authority,  is  not  only 
contrary  to  positive  law,  but,  being  ultra  vires,  is  an  abuse  of 
the  public  franchises  which  have  been  conferred  upon  it,  and 
the  receiver  of  the  bill,  being  chargeable  with  notice  of  the 
wrong,  is  in  pari  delicto  with  the  officers,  and  should  have  no 
remedy,  even  for  money  had  and  received,  against  the  cor- 
poration upon  which  he  has  aided  in  inflicting  the  wrong.  The 
protection  of  public  corporations  against  such  unauthorized  acts 
of  their  officers  and  agents  is  a  matter  of  public  policy,  in 
which  the  whole  community  is  concerned,  and  those  who  aid  in 
such  transactions  must  do  so  at  their  peril.' 

"In  City  of  Litchfield  v.  Ballon,  114  TJ.  S.  190,  (5  Sup.  Ct. 
Rep.  820,)  the  same  court  said:  'The  money  received  on  the 
bonds  having  been  expended,  with  other  funds  raised  by  taxa- 
tion, in  erecting  the  water  works  of  the  city,  to  impose  the 
amount  thereof  as  a  lien  upon  these  public  works  would  be 
equally  a  violation  of  the  constitutional  prohibition  as  to  raise 
against  the  city  an  implied  assumpsit  for  money  had  and  re- 
ceived. The  holders  of  the  bonds  and  agents  of  the  city  are 
particeps  criminis  in  the  act  of  violating  that  prohibition,  and 
equity  will  no  more  raise  a  resulting  trust  in  favor  of  the  bond- 
holders than  the  law  will  raise  an  implied  assumpsit  against  a 
public  policy  so  strongly  declared.'  The  judgment  of  the  dis- 
trict court  is  affirmed. — All  concur." 

§  245.  Teachers'  compensation. — Salaries,  under  the  con- 


TEACHERS'  COMPENSATION.  273 

solidation  act  in  Cal.,  are  to  be  paid  in  the  same  order  as  other 
claims  against  the  San  Francisco  treasury.1  A  teacher  engaged 
for  a  specific  term,  and  discharged  without  cause,  can  recover 
compensation ;  the  measure  of  damages  is  ordinarily  the  amount 
of  stipulated  wages,  but  may  be  reduced  by  proof  of  ability  to 
earn  from  other  sources.2  A  rule  that  the  teachers  should  be 
liable  to  discharge  at  the  pleasure  of  the  board  is  no  defense  to 
an  action  on  a  contract  of  hire  for  a  specific  term.*  Where  a 
teacher  was  dismissed  for  cause,  and  he  took  forcible  possession 
of  the  school-house  and  continued  to  teach,  he  was  not  entitled 
to  any  compensation  from  the  time  of  his  dismissal.8  Under 
the  act  of  1857,  Ga.,  all  accounts  for  teaching  poor  children  are 
to  be  paid  pro  rata;*  under  the  act  of  1852,  Ga.,  whenever  the 
teachers  are  not  paid  in  full,  the  balances  due  are  to  be  paid 
out  of  the  taxation  for  the  next  year  before  the  accounts  of  the 
teachers  for  that  year.5  The  act  of  1854,  Ga.,  requires  the 
treasurer  of  the  poor-school  fund  in  the  county  of  M.  to  pay 
the  teachers  for  1851  and  1852  their  accounts  in  full;  such  act 
does  not  impair  any  contract  made  under  the  act  of  1852  ;5  but 
promises  made  by  the  ordinary,  in  Ga.,  under  a  mistaken  con- 
struction of  said  last-mentioned  act,  create  no  contract.*  In 
Ga.  the  county  board  of  education  cannot  try  claim  for  teach- 
er's compensation  until  the  county  commissioner  has  audited 
account.'  A  teacher  kept  a  regular  schedule  under  111.  act  1855r 
certified  it  himself,  and  it  was  certified  by  one  director  only,  the 
rest  being  absent ;  and  it  was  not  presented  to  the  township- 
treasurer  before  or  on  the  day  prescribed ;  he  was  not  entitled 
to  recover  by  bill  in  chancery,  but  remedy  is  by  mandamus.7 


1  Knox  v.  Woods,  8  Cal.  545. 
*Sch.  Diet.  v.  Hale,  15  Col.  367. 
s Pierce  v.  Beck,  61  Ga.  413. 
*  King  v.  Barker,  28  Ga.  293. 
—  18 


6  Johnson  v.  The  Governor,  etc.,  17  Ga.  179.. 
"Cheney  v.  Newton,  67  Ga.  477. 

7  Cotton  v.  Trs.,  20  111.  607. 


274 


PUBLIC   SCHOOL   LAW. 


A  teacher  delivered  the  teacher's  schedule  to  one  of  the  di- 
rectors, who  signed  and  retained  it ;  he  was  entitled  to  recover.1 
Mandamus  is  not  the  remedy  of  a  teacher ;  he  should  sue  the 
school  directors  of  the  district,  and  upon  a  recovery  enforce  the 
special  execution  by  attachment  or  mandamus.8  Under  the 
provision  of  111.  Rev.  Stat.,  ch.  122,  §  53,  it  is  not  lawful  for  the 
treasurer  to  pay  the  teacher  or  assignee  before  the  filing  of  the 
schedule.8  Section  41  of  111.  law  of  1849,  in  relation  to  the 
distribution  of  the  school  fund  among  teachers  on  first  Saturday 
of  April  and  October,  is  mandatory.* 

§  246.  Teacher's  compensation. — In  an  action  for  salary 
of  a  teacher  in  a  township  school,  the  complaint  need  not  allege 
that  the  trustee  had,  at  the  beginning  of  the  suit,  sufficient  school 
revenue  for  tuition  to  pay  his  claim  ;5  and  it  is  no  defense  to 
action  for  teacher's  wages  under  a  contract,  that  there  is  no 
money  on  hand.8  If  the  treasurer  has  money  belonging  to  the 
district,  and  devoted  to  payment  of  teachers'  wages,  and  refuses 
to  pay  it  over  on  a  proper  order  and  demand,  he  is  personally 
liable.7  In  Ind.  a  teacher  contracts  with  reference  to  the  pro- 
vision of  law,  that  only  seventy-five  per  cent,  due  him  shall  be 
paid  before  he  makes  his  report.8  Where  sufficient  tax  had 
been  collected  to  pay  the  balance  due  to  a  teacher,  for  which 
he  had  an  order  on  the  treasurer,  and  payment  was  refused,  he 
might  recover  of  the  district.9  On  appeal  to  superintendent  of 
public  instruction  from  district-board  directors,  a  decision  that 
teacher  was  wrongfully  discharged  is  binding  on  the  district.10 
Trustees  failing  to  collect  school  funds  as  required  by  law,  are 


i  Adkins  v.  Mitchell,  67  m.  511. 
'Rodgers  y.  People,  68  111.  154. 
»Sch.  Dirs.  etc.  v.  Greenville  Bank,  3  111. 
App.  349. 

*  Thomas  v.  Trs.  Sens.,  16  111.  163. 

•  Harmony  v.  Moore,  80  Ind.  276. 


6  Harrison  v.  McGregor,  96  Ind.  185. 

7  Edaon  v.  Harden,  18  Wis.  687. 

»  Owen  Sch.  Tp.  v.  Hay,  107  Ind.  351. 
"McCasky  v.  Sch.  Dist.  No.  1,  2   Greene 

(Iowa)  482. 
"Park  v.  Pleasant  Grove  S,  D.,  65  Iowa,  209. 


TEACHER'S   COMPENSATION. 


275 


personally  liable  to  the  teacher.1  The  exaction  of  extra  com- 
pensation by  the  teacher,  from  the  parents  of  children,  does  not 
constitute  a  defense  to  the  payment  of  the  warrant  drawn  by 
directors.8  Section  11  of  the  act  La.,  which  requires  that  the 
warrant  drawn  for  the  salary  of  any  teacher  should  be  accom- 
panied by  a  statement  of  the  number  of  children  taught,  etc.,  is 
•directory  only.2  The  act  of  1855,  La.,  did  not  fix  the  amount 
to  be  paid  to  teachers  in  the  public  schools ;  and  where  there  is 
no  contract  they  can  recover  on  a  quantum  merwit*  Under 
Md.  act  of  1872,  ch.  377,  sub.  ch.  8,  §  3,  the  principal  of  a  public 
school  is  not  exempt ;  and  if  he  fails  to  make  these  reports,  or 
to  perform  the  duties  of  a  teacher,  he  cannot  recover  the  salary 
agreed  to  be  paid  him  for  his  services.* 

§247.  Teacher's  compensation. — A  Boston  teacher, 
elected  annually  and  payable  quarterly,  if  dismissed  at  end  of 
quarter  by  committee,  under  acts  1844  and  1854,  without  mis- 
conduct on  her  part,  cannot  recover  compensation  for  remainder 
of  time.5  Teacher  cannot  recover  compensation  for  his  services 
until  he  has  completed  the  register  required  by  act  of  1849.6 
In  Mass.,  the  act  of  1838  authorized  the  school  committee  to 
contract  for  teachers  for  the  town  and  district  schools,  and  they 
could  bind  the  town  to  pay  for  them  ;7  the  power  given  to  the 
school  committee  to  contract  with  teachers,  includes  the  power 
to  determine  their  salaries ;  and  the  city  council  have  no  con- 
trol except  by  voting  to  close  a  school  after  it  has  been  kept 
the  length  of  time  required  by  law.8  Payment  of  the  teacher's 
wages  by  the  town  to  the  committee,  does  not  discharge  the 
town's  liability  to  him.9  Except  in  graded  schools  maintained 


1  Ferguson  v.  True,  3  Bush  (Ky.)  255. 
SMiahle  v.  Pournet,  13  La.  Ann.  607. 
8Offut  v.  Bourgeois,  16  La.  Ann.  163. 
*Sch.  Comm'rs  v.  Adams,  43  Md.  349. 
*Knowles  v.  Boston,  12  Gray  (Mass.)  339. 


'Jewell  v.  Abington,  2  Allen  (Mass.)  592. 
ffiatchelder  v.  Salem,  4  Cush.  (  Mass  )  599. 
8Charlestown  v.  Gardner,  98  Mass.  587. 
•Clark  v.  Great  Barrington,  11  Pick.  (Mass.) 


276 


PUBLIC   SCHOOL   LAW. 


by  districts,  towns  alone  are  liable  for  support  of  schools,  and 
are  liable  for  the  teacher's  compensation,  in  Me.1  A  teacher 
employed  by  a  de  facto  agent  may  recover  compensation  for 
his  services,  but  not  for  services  rendered  after  notice  of  dismis- 
sal by  school  committee.2  There  should  be  no  deductions  for 
holidays  from  the  teacher's  wages,3  or  for  closing  school  on  ac- 
count of  small-pox  ;*  and  a  teacher  may  sue  district  for  compen- 
sation, although  mandamus  would  lie  to  compel  the  treasurer  to 
pay  the  warrant  ;6  but  issuing  an  order  knowingly  to  an  unli- 
censed teacher,  subjects  the  officer  to  penalty  in  Minn.;6  though 
act  Miss.,  Mch.  15,  1884,  does  not  relieve  the  county  from  the 
obligation  to  pay  valid  certificates  which  were  not  presented 
under  the  act,  because  they  had  been  mislaid.7  Warrants  for 
the  payment  of  teachers  of  both  white  and  colored  schools  of 
the  same  district,  are  properly  drawn  upon  the  teachers'  fund  of 
said  district,  in  Mo.8 

§  248.  Teachers'  compensation. — Where  teacher  left  on 
being  notified  that  he  did  not  give  satisfaction,  he  cannot  re- 
cover for  the  remainder  of  the  term,  his  leaving  being  construed 
as  voluntary  on  his  part  ;9  but  the  neglect  of  parents  to  send 
their  children  to  a  given  school  cannot,  of  itself,  affect  the  right 
of  its  teacher  to  compensation.10  Where  teacher,  in  Neb.,  has 
his  certificate  to  teach  in  another  county  indorsed  by  the  super- 
intendent of  the  district,  the  school-district  treasurer  must  pay 
him.11  The  teacher  cannot  lawfully  be  paid  until  he  has  made  a 
report  to  the  superintending  committee,  as  required  by  statute  ;12 
and  the  school  district  may  maintain  an  action  against  such  com- 


i  Norton  v.  Sonle,  75  Me.  385. 

2Woodbury  v.  Knox,  74  Me.  462. 

•  Sch  Diet.  v.  Gage,  39  Mich.  484;  Halloway 

v.  Ogden  S.  D.,  62  Mich.  153. 
*Dewey  v.  Alpena  Sch.  Dist,  43  Mich.  480. 
6  Martin  v.  El  wood,  35  Minn.  309. 
«Sch.  Dist.  v.  Washington  Co.,  31  Minn.  533. 


'Douglas  v.  Downing,  (Miss.)  9  So.  297. 

estate  v.  Thompson,  64  Mo.  26. 

SFrazier  v.  Sch.  Diet.,  24  Mo.  App.  250. 
i°Doyle  v.  Sch.  Dist.,  36  111.  App.  653. 
"  State  v.  Grosvenor,  19  Neb.  494. 
"Moultonborough  v.  Tuttle,  26  N.  H. 
Fost.)  470. 


(6 


TEACHER'S   COMPENSATION. 


277 


mitteeman,  to  recover  back  the  money  paid ;  the  certificate  of 
the  superintending  committee  that  a  report  is  made,  is  not  con- 
clusive.1 A  teacher  in  !N.  J.  is  entitled  to  a  mandamus  to  com- 
pel the  trustees  to  pay  the  salary  due  him.2  A  teacher  under 
contract  with  a  de  facto  trustee  can  recover  pay  for  services.8 
Giving  a  note  made  to  a  teacher  for  wages  earned  in  the  em- 
ployment of  the  district,  is  within  the  scope  of  power  of  trustees 
of  a  district.4  Under  the  by-laws  of  the  board  of  education  of 
New  York  city,  mandamus  will  not  lie  to  the  board  of  education 
to  pay  the  salary  of  a  teacher  alleged  to  have  been  wrongfully 
dismissed ;  relator's  only  remedy  being  to  have  his  name  put 
on  the  pay-roll,  that  his  salary  might  be  paid  in  the  regular  way.6 
A  teacher  discharged  before  the  end  of  the  term  sued  the  dis- 
trict trustee  in  the  county  court  and  was  non-suited  ;  the  non-suit 
did  not  bar  appeal  from  trustee  to  superintendents ;  an  appeal 
could  be  taken  to  the  superintendent,  under  laws  of  1864,  and 
the  superintendent's  decision  was  final,  and  the  trustee,  by  sub- 
mitting the  case  to  the  superintendent,  without  objection,  waived 
a  jury  ;8  and  the  trustee  may  be  directed  by  the  superintendent 
to  issue  a  tax  list  and  a  warrant  to  collect  sufficient  to  pay  the 
claim,  if  he  has  not  enough  on  hand.6  A  school  committee  in 
N.  C.  are  not  personally  liable  on  contracts  made  in  the  line  of 
their  duty,  but  mandamus  is  the  remedy  to  compel  them  to  give 
an  order  on  the  county  treasurer.7 

§249.  Teachers'  compensation.  —  The  wrongful  exclu- 
sion of  a  pupil  from  a  school  by  a  teacher,  under  the  direction 
of  the  directors,  does  not  defeat  the  right  to  wages.8  A  town- 
ship clerk  cannot  refuse  to  draw  order  for  wages,  on  the 


iMonltonborough  v.  Tattle,    26  N.  H.   (6 

Foet.)  470. 

2  Apgar  v.  Trs.,  34  N.  J.  L.  308. 
»De  Wolf  v.  Watterson,  35  Hun  (N.  Y.)  111. 
*Horton  v.  Garrison,  23  Barb.  (N.  Y.)  176. 


e People  r.  Bd.  Ed.,  15  N.  Y.  S.  308. 
« People  v.  Eckler,  19  Hun  (N.  Y.)  I 
7  Robinson  v.  Howard.  84  N.  C.  151. 
s  State  v.  Blain,  36  Ohio  St.  429. 


278 


PUBLIC  SCHOOL   LAW. 


ground  that  the  contract  wrongfully  stipulated  for  the  exclusion 
of  some  pupils  ;*  nor  because  refusal  is  made  by  order  of  the 
township  board  of  education.1  The  board  of  education  em- 
ployed the  plaintiff  to  teach  a  school  in  the  district,  which  he 
did  for  three  months  without  any  notification  from  the  local 
directors  to  desist;  upon  a  refusal  of  the  township  treasurer, 
by  order  of  the  local  directors,  to  pay  the  order  given  by  the 
board  for  his  wages,  a  mandamus  would  lie.8  Mandamus  is 
the  proper  remedy  to  compel  a  clerk  of  a  school  district  to  pay 
over  money  in  his  hands  applicable  to  a  warrant  issued  in 
favor  of  a  teacher,  for  salary.3  The  board  of  public  educa- 
tion of  the  city  of  Philadelphia  had  no  power  to  appoint  a 
superintendent  of  music.*  Under  the  ordinance  of  councils, 
Mch.  4,  1861,  Pa.,  a  suit  brought  against  the  city  by  one  of 
the  teachers  for  her  salary,  before  the  adoption  of  scale  of 
salaries,  was  prematurely  brought,  and  could  not  be  sustained  ;5 
and  the  discretion  in  board  of  controllers  of  public  schools  in 
Philadelphia,  as  to  salaries  of  teachers,  must  be  exercised  in 
subordination  to  the  appropriating  power  of  the  councils.5 
County  commissioners  had  power  to  approve  an  account  of  a 
teacher  of  poor  children,  under  the  act  of  Apr.  4,  1794,  in  a 
township  which  refuses  to  accept  the  general  school  law.*  Man- 
damus is  the  proper  remedy  for  a  teacher  whose  certificate  is 
wrongfully  withheld  by  the  controllers.7  In  R.  L,  the  town 
committee  voted  to  not  pay  certain  teacher's  wages ;  on  appeal, 
the  commissioner  of  public  schools  decided  they  should  be  paid ; 
the  commissioner  had  no  authority  to  draw  an  order  on  the 
treasury,  but  must  certify  his  decision  to  the  town  committee.8 


1  State  v.  Blain,  36  Ohio  St.  429. 

2  Case  v.  Wresler,  4  Ohio  St.  561. 
'Howard  v.  Bamford,  3  Oreg.  565. 

*  Perot  v.  Philadelphia,  11  Phila.  (Pa.)  181. 

•  Phila.  v.  Johnson,  47  Pa.  St.  382. 


8 Parker  v.  Lancaster  Co.,  1  Watte  &  S.  (Pa.) 

460. 

TMcManters  v.  Sch.  Cont,  7  Phila.  (Pa.)  23. 
« Randall  v.  Wetherell,  2  B.  I.  120. 


TEACHER'S  COMPENSATION. 


279 


§250.  Teacher's  compensation. — By  custom,  in  N.  C., 
school  masters  charge  by  the  quarter ;  the  defendant's  children 
continuing  over  one  quarter,  he  is  liable  to  pay  for  two  entire 
quarters.1  The  Tenn.  act  of  1870,  as  to  payment  of  teachers  by 
the  county  trustees,  is  not  repealed  by  the  act  passed  two  days 
later.2  Teachers  cannot  draw  pay  from  public  funds  unless  it 
is  a  public  school.'  The  Tex.  act  of  1883,  allowing  auditing  of 
unpaid  claims  for  teachers'  services  rendered  between  Sept.  1st, 
1873,  and  Aug.  1st,  1876,  is  a  substitute  for  the  law  in  force; 
and  where  a  school  voucher  was  audited,  for  which  a  levy  has 
been  made,  and  it  was  not  presented  for  six  months,  it  was 
barred  —  and  the  act  is  not  unconstitutional.*  The  act  of  1883, 
Tex.,  makes  it  the  duty  of  the  counties  to  pay  the  claims  of  the 
teachers  that  have  been  audited,  and  recovery  may  be  had  by 
assignee  of  such  claim.5  After  a  teacher  was  dismissed  she 
offered  to  accept  $20,  and  the  district  voted  to  settle  with  her 
"if  it  could  be  done  for  $20,"  but  they  never  communicated  to 
her  any  acceptance  of  her  proposal ;  the  offer  was  not  binding 
on  the  teacher.6  In  a  suit  for  teacher's  salary  it  is  improper  to 
require  him  upon  cross-examination  to  answer  questions  pro- 
pounded, to  test  his  competency,  or  to  show  that  after  his  em- 
ployment a  remonstrance  was  circulated  in  his  district,  and 
signed  by  divers  persons  ;7  and  evidence  that  a  majority  of  the 
voters  in  the  district  were  dissatisfied  with  the  plaintiff,  and 
plaintiff  and  committee  contracting  knew  this  at  the  time  the 
plaintiff  was  employed  as  teacher,  is  inadmissible.8  In  Yt,  a 
teacher  did  not  forfeit  her  salary  by  neglect  to  answer  the  in- 
quiries in  the  school  register,  and  to  certify  to  the  correctness  of 


iReckely  v.  Cummins,  Harp.  (S.  C.)  267. 
>Arrington  v.  Cotton,  57  Tenn.  316. 
8Us8ery  v.  Laredo,  65  Tex.  406. 
4  Parker  v.  Buckner,  (Tex.)  2  S.  W.  746. 


6 Co.  Caldwell  T.  Crocket,  (Tex.)  4  S.  W.  607. 
•Richardson  v.  Sch.  Dist.,  38  Vt.  602. 

7  Doyle  v.  Sch.  Dist.,  36  111.  App.  653. 

8  Mason  v.  Sch,  Dist.  No.  14,  20  Vt.  487. 


280  PUBLIC  SCHOOL  LAW. 

her  record  of  the  attendance  and  deportment  of  pupils ;  but  she 
was  liable  for  any  loss  to  district  which  her  neglect  has  caused.1 
§  251.  Teachers,  contract. — Under  Me.  act  1821,  ch.  117, 
a  school  committee  of  three  appointed  by  a  district  had  no  au- 
thority to  hire  a  school  master,  that  power  being  vested  in  the 
school  agent  ;2  and  under  the  Ga.  act  1881,  giving  mayor  and 
council  of  B.  power  to  employ  teachers,  the  citizens  cannot  em- 
ploy against  will  of  the  officers.8  Where  contract  does  not  pro- 
vide as  to  time,  but  the  commissioners  of  the  16th  section,  Ala., 
agree  to  remunerate  him  with  its  "available  funds"  for  one 
year,  the  inference  is  that  he  is  to  render  service  for  that  time 
and  enter  on  his  work  in  a  reasonable  time/  The  trustee  of  a 
school  district,  disputing  the  legality  of  an  adjourned  school 
meeting  at  which  his  successor  was  elected,  held  over,  and  em- 
ployed plaintiff  as  teacher ;  such  acts  were  valid  as  those  of  an 
officer  de  facto!"  A  contract,  in  Wis.,  for  teaching  the  district 
school  for  a  term  extending  beyond  the  time  when  the  term  of 
office  of  its  officers  will  expire,  unless  made  contrary  to  a  deter- 
mination of  the  district  at  the  previous  annual  meeting,  under 
Rev.  St.,  ch.  23,  §  15,  is  valid,  subject  to  the  power  of  the  dis- 
trict at  its  next  annual  meeting,  or  of  the  same  officers  or  their 
successors,  to  end  it  by  determining  the  length  of  time  a  school 
shall  be  taught  in  the  district,  and  by  whom.6  Board  of  direct- 
ors at  end  of  their  term  cannot  contract  for  teacher  for  ensuing 
year  ;7  and  in  New  Orleans  a  teacher  cannot  be  employed  in 
public  schools  for  longer  term  than  one  year.8  School  direct- 
ors in  111.  cannot  employ  teachers  for  a  succeeding  year  with- 
out the  annual  reorganization  of  the  board  ;9  and  in  "N.  C.  a 


1C  osby  v.  Sch.  Dist.,  35  Vt.  623. 
«  Patterson  v.  Butler,  11  S.  E.  399. 
s.Moor  v.  Newtield,  4  Me.  (4  Greenl.)  44. 
4Coinm'rs  v.  Criswell,  6  Ala.  565. 
« J5arrett  v.  Sayer,  12  N.  Y.  S.  170. 


«  Webster  v.  Sch.  Dist.,  16  Wis.  316. 
^Cross  v.  Sch.  Dirs.,  24  111.  App.  191. 
s  Golden  v.  N.  O.  Sch.  D.,  34  La.  Ann.  354  ; 
Sch.  Dirs.  v.  Hart,  4  111.  App.  224. 


»  Davis  v.  Sch.  Dirs.,  92  111 


.  App. 
.  293. 


TEACHER,  CONTRACT. 


281 


school  committee  have  no  power  to  employ  teacher  beyond 
their  term  of  office.1  "In  the  case  of  Stevenson  v.  School  Di- 
rectors, 87  111.  255,  the  decision  was  placed  upon  the  ground 
that  the  meeting  which  chose  directors  determined  what  should 
be  taught  in  the  schools,  and  that  it  was  a  necessary  inference 
that  no  contract  could  be  made  until  it  was  known  what  service 
was  to  be  contracted  for." 

§  252.  Teacher,  contract. — An  answer  which  alleges  that 
the  persons  who  signed  plaintiff's  contract  were  not  duly  elected 
.and  qualified  school  trustees,  but  mere  usurpers,  is  demurrable 
when  pleaded  after  a  general  denial,  since  it  is  only  a  special 
denial.2  A  contract,  when  signed  by  the  teacher  and  one  of  the 
trustees,  when  the  board  was  not  in  session,  and  afterwards 
approved  at  a  special  session  of  the  board,  and  there  signed  by 
another  trustee,  is  binding.8  The  admission  of  evidence  con- 
cerning rumors  in  regard  to  the  purpose  of  the  board,  and  their 
intention  not  to  permit  plaintiff  to  teach,  is  not  reversible  error.8 
There  is  no  law  that  forbids  the  school  board  to  make  a  contract 
for  a  superintendent,  for  a  term  beginning  after  some  members 
of  the  board  go  out  of  office.8  A  contract  cannot  be  annulled 
by  the  subsequent  action  of  the  school  town  in  abolishing  the 
department  in^  which  teacher  was  engaged  to  teach.*  Where 
trustees,  with  the  acquiescence  of  the  town,  continue  to  act  as 
such  after  the  expiration  of  their  term,  and  before  their  success- 
ors are  appointed,  they  are  officers  de  facto,  and  their  contract 
with  a  teacher  is  binding.4  Such  contract  cannot  be  assailed  by 
subsequently-elected  trustees,  when  it  is  not  alleged  that  the 
teacher  was  a  party  to  the  fraud  in  effort  to  forestall  them  ;*  the 


i Taylor  T.  Sch.  C.,  5  Jones  (N.  C.)  L.  88; 

Stevenson  v.  Sch.  Dirs.,  87  111.  255. 
*  Town  Milford  v.  Powner,  126  Ind.  528. 


'Reubelt  v.  Sch.  Town,  106  Ind.  480;  Wait  v 
Ray,  67  N.  Y.  38;  Tappan  v.  Sch.  Diet.,  44 
Mich.  500;  Webster  v.  Sch.  D.,  16  Wis. 
317. 

*  Sch.  T.  Milford  v.  Zeigler,  ( Ind.)  27  N.  E.  303. 


282  PUBLIC   SCHOOL   LAW. 

board  of  school  trustees  may  bind  the  school  town  by  a  contract 
with  a  teacher,  although  the  contract  is  not  to  be  performed  be- 
fore the  election  of  a  new  board.1  In  N.  Y.,  a  contract  with 
teacher  made  by  the  sole  trustee  of  a  school  district,  extending 
beyond  the  trustee's  term  of  office,  was  valid  ;8  and  the  power 
of  a  school  committee  to  contract  with  a  teacher  for  a  period 
longer  than  their  own  term  of  office,  upheld.8  The  district- 
school  board,  Mich.,  need  not  wait  for  the  annual  meeting  of 
district  before  hiring  teacher  for  following  year,  though  two  of 
the  members  of  the  board  go  out  of  office  at  that  time.*  As- 
sumpsit  lies  against  the  trustees  of  a  school  district  for  the 
wages  of  a  teacher  employed  under  a  contract  with  their  prede- 
cessors, whether  funds  are  in  the  defendant's  hands  or  not.5 
Contracts  with  teachers  are  binding  on  the  successors  of  the 
trustees  of  the  district.6 

§  253.  Teacher,  contract. — The  provisions  in  the  Mich, 
primary-school  law,  whereby  the  voters  and  the  district  board 
shall  have  full  control  of  the  schools  during  the  entire  school 
year,  did  not  apply  to  graded  schools  and  cannot  affect  any 
contract  for  teaching,  made  by  the  trustees  before  the  year 
opened.7  The  prudential  school  committee,  chosen  in  March, 
cannot  interfere  with  a  teacher  engaged  by  the  general  com- 
mittee of  preceding  year,  under  act  of  1846,  for  that  term.8  A 
school  district  was  bound  by  the  contract  of  its  prudential  com- 
mittee, although  it  extended  beyond  the  official  year  of  the  com- 
mittee, and  the  school  district  had  neither  authorized  the 
prudential  committee  to  enter  into  a  contract  extending  beyond 


iSch.  T.  Milford  v.  Zeigler,  (Ind.)  27  N.  E. 

303;  Reubelt  v.  Sch.  T.,  106  Ind.  478. 
'Gills  v.  Space,  63  Barb.  (N.  Y.)  177;  Waid 

v.  Ray,  67  N.  Y.  36. 
•Wilson  v.  East  Bridgeport  Sch.  Dist.,  36 

Conn.  280. 


'Cleveland  v.  Amy.  (Mich.)  50  N.  W.  293. 
*  Williams  v.  Keech,  4  Hill.  (N.  Y.)  168. 
sSilverv.  Cummings.  7  Wend.  (N.  Y.)  181. 
7Tapp  n  v.  Carrollton  Sch.  D.,  44  Mich.  500. 
s Sch.  D.  v.  Morse,  8  Gush.  (Mass.)  191. 


TEACHER,  CONTRACT. 


283 


the  official  school  year,  nor  authorized  this  term  of  school  which 
he  was  employed  to  teach.1  Under  Rev.  L.  Vt.,  §  515,  a  com- 
mittee elected  in  March  might  make  contract  for  the  ensuing 
school  year,  September  to  June.8  Where  de  facto  trustee  con- 
tracts with  a  teacher,  the  election  of  a  trustee  de  jure  who 
ignores  the  contract,  will  not  defeat  the  teacher's  right  to  com- 
pensation for  discharge  by  him.8  Where  statute  Ala.  enacts,, 
"where  but  one  school  is  supported,  the  commissioners  shall 
have  power  to  employ  a  teacher,"  etc.,  a  teacher  so  employed 
need  not  allege  there  is  but  one  school.4  Mandamus  is  the 
remedy  to  restore  a  teacher  to  the  position  from  which  he  has 
been  removed  wrongfully  and  unlawfully.5  Two  of  three 
directors  may  contract  at  a  meeting  of  which  the  third  has  had 
.notice,  and  notice  need  not  be  given  for  regular  meeting  ;6  and 
this  applies  to  a  school-district  committee.7  A  vote  directing 
the  committee  not  to  employ  a  certain  teacher,  was  inadmissible 
in  evidence,  where  the  notice  of  the  district  meeting  was  not 
sufficient.8  If  the  district  neglects  to  act,  the  committee  are 
authorized  to  provide  rooms  and  employ  teachers  at  the  expense 
of  the  district  ;9  but  if  the  district  acts,  the  committee  must  con- 
form to  its  action.9 

§  254.  Teacher,  contract.  —  That  the  plaintiff  had  miscal- 
culated the  amount  due  him,  is  not  admissible  evidence  of  in- 
competency.10  Where  not  waived,  a  teacher's  contract  cannot 
be  fulfilled  by  procuring  a  substitute,  however  competent.11  In 
order  to  create  a  liability,  under  a  contract  provided  for  by  the 
common-school  law,  the  statutory  requisitions  must  be  complied 


iChittenden  v.  Waterbury,  56  Vt.  551 ;  Mason 
v.  Sch.  DiPt,,  20  Vt.  487;  Chaplin  v.  Hill, 
24  Vt.  528 ;  Waterbnry  v.  Harvey,  56  Vt  556. 

'Cnittenden  v.  Waterbury,  56  Vt.  551. 

»O'Neil  v.  Battie,  ( Sup.)  15  N.  Y.  S.  818. 

«Comm'rs  v.  Criswell,  6  Ala.  565. 

6 Kennedy  v.  Bd.  Ed.,  82  Cal.  483. 


«Sch.  Dist.  v.  Bennett,  52  Ark.  511. 

i  Wilson  v.  Waltereville,  Sch.  Dist.,  46  Conn. 
400. 

s  Wilson  v.  Sch.  Dist.,  44  Conn.  157. 

9  Oilman  v.  Bassett,  33  Conn.  298. 
10  Doyle  v.  Sch.  Dist.,  36  111.  App.  653. 
"Sch.  Dirs.  v.  Hudson,  88  111.  563. 


284 


PUBLIC   SCHOOL   LAW. 


with.1  The  defendant  wrote :  "  We  have  had  a  meeting  of  all 
the  citizens  of  the  place  that  are  interested  in  a  female  school, 
and  all  are  satisfied  with  Miss  J.,  and  are  anxious  to  employ  her, 
and  are  resolved  to  make  her  this  proposition :  we  will  guaran- 
tee to  her  the  sum  of  $400  for  one  year,"  etc.  The  plaintiff 
accepted  the  proposition,  and  taught  the  school  three  months 
and  ten  days,  when  the  parties  separated  by  consent.  The  peti- 
tion was  filed  for  discovery  of  the  names  of  the  trustees  and 
guarantors,  and  for  payment ;  defendant  was  not  liable ;  there 
was  no  contract  shown,  and  the  plaintiff's  remedy  was  at  law.* 
A  teacher  cannot  hold  a  school  district  in  N.  H.,  liable  for  his 
wages,  under  a  contract  made  with  him  by  the  prudential  com- 
mittee.3 In  an  action  to  recover  subscription  in  aid  of  a  com- 
mon-school fund,  it  is  a  good  defense  that  the  teacher  admitted 
scholars  not  entitled  to  by  law.4  Employment  of  unlicensed 
teacher  by  trustee  of  school  district,  in  N.  Y.,  is  illegal.5  The 
Pa.  statute  of  1862,  requiring  names  of  all  the  directors  and 
manner  of  voting  for  teacher  to  be  recorded,  is  mandatory  and 
must  be  strictly  complied  with,  and  cannot  be  supplied  by  other 
evidence.6  The  employment  of  teacher  by  committee  of  Dis- 
trict No.  3,  Chowan  county,  N.  C.,  after  acts  1883  and  1885, 
was  unauthorized,  this  district  having  been  put  in  hands  of  trus- 
tees.7 Where  the  president  of  a  board  of  school  directors  is 
authorized  to  employ  teachers  with  the  consent  of  the  board, 
and  one  whom  he  employs  by  written  contract  begins  teaching, 
with  the  knowledge  of  each  member,  the  consent  of  the  mem- 
bers will  be  presumed.8  The  trustee  of  a  civil  township,  in  Ind., 
as  such,  cannot  employ  a  teacher,  an  action  against  such  town- 


1  Cascade  v.  Lewis,  43  Pa.  St.  318. 

2  Wilie  v.  Price,  5  Rich.  ( S.  C.)  Eq.  91. 
«Stebbins  v.  Sch.  Dist.,  16  N.  H.  510. 

*  Chalmers  Y.  Stewart,  11  Ohio,  386. 
*Blandon  v.  Moses,  29  Hun  (  N.  Y.)  606. 


«Seh.  Dist.  v.  Mercer.  (Pa.)  9  A.  64. 

T  Skinner  v.  Baleman,  (N.  C.)  1  S.  E.  533. 

8 Hull  v.  Ind.  Dist.,  (Iowa)  46  N.  W.  1053; 

N.  W.  83. 


TEACHER,  CONTRACT. 


285 


ship  cannot  be  sustained,1  and  a  civil  township  was  not  liable 
on  a  contract  made  by  a  township  trustee  with  a  common-school 
teacher.8 

§  255.  Teacher,  contract. — In  Mich,  a  teacher  cannot  be 
employed  by  two  members  of  the  board  without  the  concur- 
rence of  the  third,  and  without  any  meeting  of  the  board.3  A 
contract  with  teacher,  made  by  two  members  of  the  board,  in 
absence  of  each  other,  and  without  knowledge  of  third,  is  not 
binding  on  district.*  A  contract  made  by  two  of  three  di- 
rectors of  a  district,  at  a  time  different  from  the  time  fixed  for 
regular  meetings,  and  of  which  the  third  director  had  no  notice, 
is  not  binding.5  A  contract  between  the  president  and  secre- 
tary of  board  with  teacher,  is  void ;  Pa.  Acts  1862,  p.  472, 
requires  concurrence  of  the  board.6  Where  statutory  mode 
of  contract  is  required  to  be  by  the  board,  a  contract  by 
individual  members  of  board  will  not  bind,  and  ratification 
will  not  make  valid;7  but  the  fact  that  the  officers  of  the 
district  were  not  together  when  the  contract  was  signed , 
does  not  overcome  the  presumption  that  it  had  been  author- 
ized by  the  board  at  a  meeting,  as  required  by  R.  S.  Wis., 
§  43 2.8  The  board  of  directors  cannot  waive  the  fact  that 
the  teacher  is  unfit  or  incompetent  to  teach;  they  should  dis- 
charge him.9  Where  contract  with  teacher  was  for  definite 
time  unless  discontinued  by  directors,  a  discontinuance  for  diph- 
theria is  to  be  deducted  from  the  time.10  Section  28  of  1  Ind. 
Rev.  Stat.  1876,  p.  788,  applied  to  the  school  trustees  of  cities 
and  incorporated  towns,  as  well  as  to  the  trustees  of  school 


1  Greensboro  v.  Cook,  58  Ind.  139. 

2  Harrison  v.  McGregor,  67  Ind.  380. 
SHazen  v.  Lerche,  47  Mich.  626. 
*Aikman  v.  Sch.  Diet.,  27  Kas.  129. 

*Sch.  Diet  v.  Bennett,  (Ark.)  13  S.  W.  132. 


'Dennison  Sch.  Dist.  v.  Padden,  89  Pa.  St.  395. 
?  Pa.  L.  Hod  Co.  v.  Cass  Bd.  Ed.,  20  W.  Va.  360 
8  Dolan  v.  Joint  Sch.  Dist.,  (Wis. )  49  N  W  96-J 
»Sch.  Dist.  v.  Maury,  53  Ark.  471. 
1°  Goodyear  v.  Sch.  Dist.,  17  Oreg.  517. 


•286 


PUBLIC   SCHOOL    LAW. 


townships.1  A  vote  to  discontinue  the  school  and  to  pay  her 
$17.50,  "for  teaching  in  sub-district,"  etc.,  was  no  ratification 
of  contract  made  by  sub-director  without  authority.8  A  trustee, 
employed  as  a  teacher  by  the  two  others,  vacates  his  office  as 
trustee.3  No  recovery  can  be  had  on  contract  to  teach  school, 
made  with  a  sub-director,  in  Iowa,  but  not  approved  by  the 
president  of  the  board,  unless  approval  is  waived,  and  contract 
ratified  ;*  a  contract  with  a  teacher  becomes  binding  upon  a 
district  township  only  when  made  by  a  sub -director  and  ap- 
proved by  the  president  of  the  board,  under  Iowa  Code,  §  1753.5 
§256.  Teacher,  contract.  —  Contract  in  book,  signed  by 
assessor  and  director,  but  not  at  same  time,  and  moderator  con- 
senting, is  valid.6  Where  the  resolution  is  passed  at  a  session 
of  the  board  of  school  trustees,  it  is  immaterial  that  the  trustees 
signed  the  contract  at  different  times.7  Where  a  township  trus- 
tee pays  teacher  out  of  his  own  pocket,  in  good  faith,  and  the 
school  funds  are  insufficient,  he  may  maintain  an  action  for 
money  so  paid.8  Where  one  of  the  board  signed  the  contract 
with  a  teacher,  which  was  afterwards  approved  at  a  called 
meeting  and  signed  by  another  member,  it  became  binding  ;9 
and  where  an  order  employing  a  teacher  is  passed  at  a  session 
of  the  board  of  school  trustees,  it  is  immaterial  that  the  trustees 
signed  the  contract  at  different  times.10  In  Iowa  the  discretion 
of  directors  to  employ  teacher  for  less  than  fifteen  scholars  will 
not  be  controlled  by  mandamus.11  A  township  obtaining  ser- 
vices of  a  teacher  under  claim  of  authority  is  estopped  to  deny 
its  liability.18  Although  a  contract  did  not  comply  with  the 


1  Putnam  v.  Irvington,  69  Ind.  80. 

2  Herrington  v.  Listen  Dist.  Tp.,  47  Iowa,  11. 
3Furguson  v.  True,  3  Bush  (  Ky.)  255. 

4  Place  v.  Coif  ax,  56  Iowa,  573. 
*Gambrell  v.  Lenox,  54  Iowa,  417. 
•6  Holloway  v.  Ogden,  62  Mich.  153. 


7  Sch.  T.  Milford  v.  Zeigler,  (Ind.)  27  N.E. 
8Kiefer  v.  Troy,  102  Ind.  279. 
9Logansport  v.  Dykeman,  116  Ind.  15. 

10  Sch.  T.  Milford  v.  Zeigler,  (Ind.)  27  N.E. 

11  Ananaon  v.  Anderson,  70  Iowa,  102. 
i*Heill  v.  Dist.  Tp.,  41  Iowa,  494. 


TEACHER,  CONTRACT.  287 

statute  requiring  it  to  be  in  writing,  (Iowa  School  Laws  1872, 
§  51,)  the  acceptance  of  part  performance  was  a  ratification, 
rendering  the  district  liable.1  While  a  sub-director  is  author- 
ized to  make  contract  with  teachers,  his  authority  is  subject  to 
the  rules  prescribed  by  board  of  directors,  in  Iowa.2  A  peti- 
tion on  teacher's  contract,  stating  contract  and  certificate  of 
qualification,  is  good  on  demurrer,  and  an  action  will  lie  on  the 
same.3  A  school  teacher,  without  written  contract,  is  entitled 
to  reasonable  compensation  from  the  district,  in  Kas.*  Con- 
tract by  district  with  teacher,  reserving  right  to  discharge  him 
at  any  time  he  fails  to  give  satisfaction,  is  valid.5  Where  mod- 
erator of  district  hired  her  husband  to  teach  for  more  than  a 
better  teacher  would  charge,  she  could  not  be  removed  as  mod- 
erator, under  primary-school  law,  for  that  reason,  in  Mich.6 
Where  two  or  three  officers  of  a  board  are  related  to  teacher, 
and  others  could  have  been  hired  for  much  less,  this  is  not  suf- 
ficient fraud  to  render  the  contract  void.7 

§  257.  Teacher,  contract. — Where  a  contract,  signed  by 
the  director  of  their  school  district,  and  teacher,  and  the  moder- 
ator writes  on  it,  "Approved,"  subscribing  as  moderator,  it  will 
be  valid.8  Where  Minn,  statute  requires  a  contract  with  a 
teacher  to  be  in  writing,  and  where  it  is  admitted  that  a  majority 
of  the  trustees  signed,  it  is  proper  to  instruct  the  jury  that 
where  the  necessary  trustees  signed,  it  would  be  a  compliance 
with  the  law,  and  to  leave  the  question  as  to  whether  there  was 
a  contract  or  not,  to  the  jury  ;9  signed  by  a  majority  at  different 
times  and  filed  with  clerk  is  prima  facie  binding.10  Although 
§  6  of  Mo.  Law  1865,  allows  the  local  directors  to  employ 


1  Cook  v.  North  McGregor,  40  Iowa,  444. 

2  Potter  v.  Fredericksburg,  40  Iowa,  369. 
sHamrick  v.  Bd.  Ed.,  28  Kas.  385. 

*. Jones  v.  Sch.  Dist.,  8  Kas.  362. 
6  Sch.  Dial.  v.  Colvin,  10  Kas.  283. 


«Hazen  v.  Akron,  48  Mich.  189. 
'Dolan  v.  Jt.  Sch.  Dist.,  (  Wis.)  49  N.W.  960. 
s Everett  v.  Sch.  Dist.,  30  Mich.  249. 
»  McGinnesa  v.  Sch.  Diet.,  39  Minn.  499. 
10  Armstrong  v.  Sch.  Dist,  28  Mo.  App.  169. 


288  PUBLIC   SCHOOL   LAW. 

teachers,  a  teacher  may  sue  the  township  board  of  education  for 
a  breach  of  the  contract,  under  §  7.1  Contract  made  by  direct- 
ors in  accordance  with  statute  is  not  to  be  avoided  by  district 
on  account  of  want  of  funds.8  Where  directors  close  the  school 
they  cannot  claim  teacher  has  forfeited  his  contract  by  not  mak- 
ing his  reports  during  that  time.2  In  Neb.,  a  contract  with 
teacher,  made  by  director  and  treasurer  of  district,  without 
knowledge  of  moderator,  was  valid.3  A  district  cannot  deprive 
the  prudential  committee  of  the  power  to  provide  board  for 
teachers.4  Where  a  teacher  made  a  contract  with  a  member  of 
the  district  board,  who  paid  her  for  teaching  and  boarded  her, 
he  could  only  contract  on  the  credit  of  the  school-money  of  the 
district  and  not  on  the  credit  of  the  district.5  The  authority 
conferred  by  statute  upon  local  directors,  to  employ  teachers, 
and  certify  the  amount  due  them  for  services,  cannot  be  con- 
trolled by  any  rule  of  the  township  board.8  Where,  at 
special  meeting  of  school  board  that  is  called  for  other  pur- 
poses, a  quorum  is  present  and  a  unanimous  vote  is  had  to 
employ  a  teacher,  this  will  be  sufficient,  under  Acts  Pa. 
1862.7  In  Pa.  the  board  of  directors  may  employ  a  teacher  if 
not  chosen  by  the  inhabitants.8 

§  258.  Teacher,  contract. — A  contract,  in  Tenn.,  for  one 
year  at  so  much  per  month,  from  Aug.  16,  was  held  to  begin  at 
usual  time  for  opening  school  and  to  end  with  usual  time  for 
closing,  or  when  funds  gave  out.9  In  Tex.,  it  was  not  intended 
that  the  county  judge  should  approve  the  contracts  in  the  com- 
munity system,  where  the  trustees  make  contracts  with  the 
teachers  ;10  where  county  judge  approves  two  copies  of  contracts 


iPnterbangh  v.  Tp.  Bd.  Ed.,  53  Mo.  472. 

«Kudy  v.  Sch.  Diet.,  30  Mo.  App.  113. 

«Ru8Bell  v.  State,  13  Neb.  68. 

4 Sch.  Diet.  v.  Currier,  45  N.  H.  573. 

6  Wheeler  v.  Alton  Sch.  D.,  (N.  H.)  23  A.  89. 


«  State  v.  Wilcox,  11  Ohio  St.  326. 
'Geneseelnd.  S.D.v.  McDonald,  98Pa.St.444. 
8Kingsley  v.  Sch.  Dirs.,  2  Pa.  St.  28. 


9  Morley  v.  Ponver,  10  Lea  ( Tenn.)  219. 
l  v.  Coleman,  72  Tex.  550. 


TEACHER,    DISMISSAL   AND   DISCHARGE.  289 

and  retains  the  third,  he  cannot  afterward  claim  that  he  in- 
tended to  approve  them  qualifiedly.1  Where  the  school-house 
was  burned,  and  no  house  was  provided,  and  teacher  was  not 
discharged,  etc.,  an  action  would  lie  for  her  wages  for  the  full 
term  ;2  and  a  teacher  may  recover  where  school-house  is  de- 
stroyed by  fire  and  no  other  is  furnished  ;3  but  it  was  held  in 
Mo.,  that  where  teacher  was  hired  for  four  months  and  the 
school-house  burned  down  after  two  months  had  elapsed,  the 
teacher  could  not  recover  compensation  for  the  remainder  of 
the  time.4  In  Yt.,  the  vote  instructing  the  committee  to  hire  a 
female  teacher  for  the  district,  is  advisory  merely.5  Defendant 
cannot  avail  itself  of  its  refusal  to  certify  that  the  register  is  re- 
turned, to  defeat  plaintiff's  right  of  recovery  for  her  services.6 
R.  L.  Yt,  p.  515,  provides  that  the  prudential  committee  of  a 
school  district  shall  "  appoint  and  agree  with  a  teacher  to  in- 
struct the  school."6  Where  the  school  committee  had  left 
an  order  for  $7.50  at  boarding  house  for  her  services  as  teacher, 
which  she  took,  but  returned  in  two  or  three  hours,  saying  that 
she  did  not  accept  it,  she  lost  nothing  by  taking  and  returning.7 
An  infant  may  contract  with  a  school  board  to  teach  a  school.* 
A  contract  by  which  the  board  declares,  "  We  reserve  the  right 
to  close  the  school  at  any  time  if  not  satisfactory  to  us,"  is  un- 
authorized and  inoperative.9  A  contract  made  between  a  teacher 
and  the  school-district  clerk,  in  the  name  of  the  district,  with 
the  consent  of  the  director  or  treasurer,  is  prima  facie  valid.10 

§259.   Teacher,    dismissal    and    discharge. — After  a 
teacher  has  been  irregularly  dismissed,  his  continuance  in  the 


i  Caviel  v.  Coleman,  72  Tex.  550. 
2Cashen  v.  Sch.  Diot.,  50  Vt.  30. 
8Sch.  Dirs.  v.  Crews,  23  111.  A  pp.  367. 
*  Hall  v.  Sch  Diet.,  24  Mo.  App.  213. 
6  Sch.  Dist.  v.  Harvey,  56  Vt.  556. 
«Cobb  v.  Sch.  Dist.,  ( Vt.)  21  A.  957. 

—  19 


7  Richardson  v.  Sch.  Diet.,  38  Vt.  602. 
"Monaghan  v.  Sch.  Dist  No.  1,  38  Wis.  100: 

Cashen  v.  Sch.  Dist.,  50  Vt.  30. 
6Tripp  v.  Sch.  Dist.,  50  Wis.  651. 
10  Webster  v.  Sch.  Dist.,  16  Wis.  316. 


290  PUBLIC   SCHOOL   LAW. 

school,  with  the  assent  of  a  majority  of  the  trustees,  is  a  waiver 
of  such  dismissal.1  In  an  action  for  services,  evidence  "that 
the  said  plaintiff  was  incompetent  to  manage  the  said  school ; 
that  she  was  unreasonable  in  her  requirements  of  the  scholars 
in  said  school ;  and  was  uneven  in  her  treatment  of  them,  and 
partial  and  abusive  in  her  treatment  of  certain  ones  in  said 
school,  and  that  she  failed  in  all  respects  as  a  teacher  of  said 
school,"  was  admissible.8  An  action  on  the  case  by  a  teacher 
will  not  lie  against  the  school  directors  for  removing  her  when 
they  acted  within  the  scope  of  their  authority,  unless  malice 
and  injury  were  the  impelling  motives.8  The  certificate  of 
school  teacher  as  to  morality  is  not  conclusive,  and  the  power 
to  revoke  a  certificate  does  not  prohibit  or  prevent  the  board 
of  directors  from  terminating  a  contract  on  the  ground  of  in- 
competency  or  gross  immorality.4  "  The  delicate  nature  of  the 
duty  devolved  upon  the  trustees,  to  see  that  unfit  or  incompe- 
tent persons  are  not  put  or  kept  in  charge  of  the  children  who 
attend  the  common  schools,  forbids  the  idea  of  a  trial  with  the 
formality  and  strictness  that  belongs  to  courts."5  The  directors 
of  a  school  district  may  undoubtedly  discharge  a  school  teacher 
for  incompetency  or  neglect  of  duty.6  The  trustees  of  a  public 
school  (N.  Y.)  may  terminate  the  employment  of  the  teacher  at 
pleasure,  and  the  only  remedy  is  on  the  contract.7  The  teach- 
ers of  the  city  (of  New  York)  are  simply  employes  of  the  trus- 
tees.8 A  teacher  discharged  by  directors  for  incompetency, 
without  a  compliance  with  Iowa  Code,  §  1734,  cannot  sue  for 
damages  unless  he  has  appealed,  as  required  by  §  1829,  to  the 
county  superintendent.9  A  teacher  (Iowa)  contracted  to  "faith- 


i  Finch  v.  Cleveland,  10  Barb.  (N.  Y.)  290. 
2Holden  v.  Sen.  Dist.,  38  Vt.  529. 
8  Burton  v.  Fulton,  49  Pa.  St.  151. 
*Sch.  Dist.  v.  Maury,  55  Ark.  47;  McCutchen 
v.  Windsor,  55  Mo.  149. 


5  The  People  v.  Bd.  Ed.,  3  Hun  (N.  Y.)  181. 
e Neville  v.  Sen.  Dirs.,  36  111.  71,  73. 
7  Swartwood  v.  Walbridge,  57  Hun  ( N.  Y.)  33. 
8 The  People  v.  Bd.  Ed.,  3  Hun  (N.  Y.)  179. 
»Kirkpatrick  v.  Ind.  Sen.  Dist.,  53  Iowa,  585. 


TEACHER,  DISMISSAL  AND   DISCHARGE. 


291 


fully  and  impartially  govern  and  instruct  the  children " ;  the 
sub-director  had  a  right  to  dismiss  her  for  a  failure  to  control 
the  school,  even  conceding  that  she  was  not  unfaithful  in  the 
discharge  of  her  duties.1  If  a  teacher  proves  incompetent  and 
unable  to  teach  the  branches  of  instruction  he  has  been  em- 
ployed to  teach,  the  trustees  are  authorized  to  dismiss  him.2 
The  trustees,  before  the  time  expired,  paid  the  teacher  to  date, 
informing  her  that  they  no  longer  needed  her  services ;  for 
such  violation  of  their  contract  the  trustees  were  not  personally 
and  individually  liable.3 

§260.  Teacher,  dismissal  and  discharge. — A  contract 
with  teacher  may  be  rescinded  when  he  is  charged  with  out- 
rageous crimes.*  The  act  (70  Ohio  L.  195)  gives  local  direct- 
ors of  schools  authority  to  dismiss  teachers  for  sufficient  cause.5 
A  district-school  board  has  power  to  discharge  a  teacher  for 
cause,  notwithstanding  employment  for  a  certain  time,  (Neb. 
Gen.  Stat.  968,  §§  45,  56.)6  Permission  to  teacher  for  absence 
can  only  be  given  by  the  directors  as  a  board.7  Under  K  J. 
Rev.,  p.  1076,  dismissal  of  a  teacher  should  be  done  at  a  meet- 
ing whereof  all  the  trustees  have  had  notice.8  Teacher  may  be 
discharged  for  incompetency  or  neglect  of  duty  ;9  the  law  only 
requires  average  qualification  and  ability,  and  the  usual  applica- 
tion to  the  discharge  of  his  duties,  to  fulfill  his  contract.9  The 
board  undertaking  to  discharge  an  employe,  could  properly  do 
so  only  after  taking  certain  prescribed  steps.10  "Under  the 
common  law,  the  teacher  would  be  subject  to  discharge  if  he 
failed  to  perform  his  duty  in  any  material  point."11  In  Mo.,  under 


1  Eastman  v.  Rapids,  21  Iowa,  590. 
2Crawfordsville  v.  Hays,  42  Ind.  200. 
s  Morrison  v.  McFarland,  51  Ind.  206. 
<Tingley  v.  Vaughn,  17  111.  App.  347. 
6Dirs.  of  Sub.-Sch.  Dist.  No.  7  v.  Burton,  26 
Ohio  St.  421. 


e  Bays  v.  State,  6  Neb.  167. 

7  State  v.  Leonard,  3  Tenn.  ch.  177. 

8Towusend  v.  Scb.  Tre.,  41  N.  J.  L.  312. 

»  Neville  v.  Sen.  Dist.,  36  111.  71. 
10  Kirkpatrick  T.  Ind.  Sch.  Dist.,  53  Iowa,  587. 
"Tripp  v.  Sch.  Diat.,  50  Wis.  657. 


292  PUBLIC   SCHOOL   LAW. 

R.  S.  1879,  §  7083,  a  teacher  is  to  be  removed  by  county  com- 
missioners for  incompetency  or  immorality,  and  not  by  board  of 
school  directors.1  Dismissal  of  teacher,  under  by-law  of  board 
that  a  majority  may  dismiss  at  will,  is  legal.2  A  teacher  may 
be  discharged  for  refusing  to  receive  back  a  pupil  whom  he  has 
suspended,  and  his  action  has  been  overruled  by  the  directors.3 
Where  directors  may  discharge  teacher  "for  incompetency, 
improper  conduct,  or  inattention  to  duties,"  notice  must  be  given 
and  trial  had ;  and  a  notice  that  they  would  try  the  teacher's 
"fitness,"  is  insufficient.* 

§261.  Teacher,  dismissal  and  discharge. — Where  the 
local  directors  of  a  subordinate  district  in  good  faith  dismissed 
the  teacher,  because  they  claimed  he  had  not  been  employed, 
they  are*  not  liable  for  damages.5  A  teacher  may  be  removed 
by  board  of  education,  New  York  city,  without  cause  asserted 
or  notice  given.6  Pa.  Acts  1854,  authorized  school  directors  to 
dismiss  a  teacher  for  incompetency,  negligence  and  immorality, 
and  where  they  dismiss  for  incompetency,  in  good  faith,  she 
could  not  recover  salary  on  ground  that  it  was  without  cause.7 
"If  they  [the  board  of  trustees]  were  satisfied  as  to  the  relator's 
incompetency,  their  power  to  remove  cannot  be  questioned;"8 
but  the  trustees  of  a  school  district  have  no  power  to  dismiss  a 
teacher  holding  the  proper  certificate,  without  cause,  and  against 
his  consent,  before  the  expiration  of  his  contract.9  A  contract 
with  teacher,  with  right  of  district  to  dismiss  on  one  month's 
notice,  enforced,  and  the  district  board  may  for  incompetency 
or  negligence  from  which  the  school  suffers  dismiss  the  teacher 


1  Arnold  v.  Sch.  Diet,  78  Mo.  226;  Armstrong 

v.  Sch.  Diet.,  19  Mo.  App.  462. 
SMcLellan  v.  St.  Louis  S.  B.,  15  Mo.  App.  362. 
» Parker  v.  Sch.  Diet.,  5  Lea  (Tenn.)  525. 
«Morley  v.  Ponver,  10  Lea  (Tenn.)  219. 
'Gregory  v.  Small,  39  Ohio  St.  346. 


«  People  v.  N.  Y.  City  Bd.  Ed.,  52  N.  Y.  Sup. 

Ct.  520. 

'McCrea  v.  Sch.  Diet.,  (Pa.  Sup.)  22  A.  1040, 
8 The  People  v.  Bd.  Ed.,  3  Hun  (N.  Y.)  185. 
"Pinch  v.  Cleveland,  10  Barb.  (N.  Y.)  290. 


TEACHER,  DISMISSAL,  ETC.  293 

without  any  formal  trial,  and  without  the  concurrence  of  the 
county  superintendent.1  In  the  absence  of  any  direction  to  the 
contrary,  by  the  district  at  a  meeting,  the  board  has  power  to 
discharge  the  teacher  for  just  cause,  before  the  expiration  of 
his  term.2  Where  other  employment  is  obtained  and  wages 
amounting  to  as  much  as  could  be  recovered  under  the  first 
contract,  are  earned,  nominal  damages  only  may  be  recovered.3 
Where  statute  authorizes  employment  by  board  and  removal  at 
pleasure,  and  contract  is  made  "  at  $30  per  month  during  the 
term  you  shall  teach,"  the  board  could  discharge  without  giving 
notice  or  reasons  for  the  same.*  Where  directors  contract  with 
teacher  for  a  certain  time,  "provided  he  gives  satisfaction,"  they 
have  the  discretion  to  discharge  and  are  not  bound  by  statutory 
requirements  as  causes  for  discharge  ;6  and  under  a  contract 
"that  teacher  should  leave  if  the  school  was  not  satisfactory," 
dissatisfaction  with  her  school,  and  not  personal  unpopularity, 
would  be  a  reason  for  dismissal.6 

§262.  Teacher,  dismissal,  etc.  —  In  a  suit  for  school 
teacher's  wages,  "discharged  for  iucompetency  "  is  a  good  de- 
fense, even  if  no  record  is  kept  of  the  proceedings.7  Under 
Mansf.  Dig.  Ark.,  pp.  6265,  6266,  the  school  directors  have 
power  to  remove  a  teacher'  for  incompetency  and  for  immor- 
ality ;  and  the  fact  that  the  teacher  has  been  duly  licensed  by 
the  county  examiner,  and  that  the  latter  has  failed  to  revoke  the 
license,  is  not  conclusive  on  the  board  as  to  the  competency  or 
morality  of  the  teacher  ;8  the  fact  that  the  board  has  tolerated 
the  teacher's  misconduct  and  inefficiency  for  a  time  does  not 
operate  as  a  waiver  of  its  right  to  discharge  him  therefor.8  The 


1  Armstrong  v.  Sch.  Disk,  28  Kas.  345. 
2Scott  v.  Joint  Sch.  Dist.,  51  Wis.  554. 
3 Doyle  v.  Sch.  Dist.,  36  111  App.  653. 
*Donavon  v.  Bd.  Ed.,  (N.  Y.)  47  Hun  13. 


*Sch.  Dire.  v.  Ewington,  26  111.  App.  379. 

«  Richardson  v.  Sch.  Dist.,  38  Vt. 

T  Sch.  Dist.  v.  McCoy,  30  Kas.  268. 

8  Sch.  Dist.  Ft.  Smith  v.  Maury,  53  Ark.  471. 


pp. 
602. 


294 


PUBLIC   SCHOOL   LAW. 


superintending  school  committee  had  no  power  to  dismiss  a 
teacher,  unless  for  cause  mentioned  in  act  of  1821,  ch.  117,  §  3, 
and  the  cause  of  dismissal  must  be  assigned  -,1  in  Me.  under  the 
act  of  1834,  ch.  129,  §3,  two  out  of  three  members  of  the 
superintending  committee  have  no  power  to  dismiss  a  teacher 
without  notice  to  the  third  member.2  Under  la.  Code,  p.  1734, 
a  discharge  bj  any  other  method  than  that  prescribed,  is  wrong- 
ful ;3  and  in  an  action  for  a  wrongful  discharge,  evidence  that 
there  were  good  grounds  for  discharge  is  irrelevant,  as  that 
question  is  not  involved.3  Under  Neb.  act  of  1866,  a  school 
board  could  remove  teacher  at  pleasure,  notwithstanding  a  con- 
tract for  one  year.4  Under  Wagn.  (Mo.)  Stat.  1243,  §  7,  the 
directors  had  no  authority  to  dismiss  a  teacher  unless  for  suffi- 
cient cause  shown ;  and  for  forcibly  dispossessing  him  of  the 
school-house  and  wantonly  obstructing  him  in  the  discharge  of 
his  duty,  they  would  be  liable  to  him  in  damages.5  One  cannot 
.maintain  a  bill  to  have  an  appointee  as  school  teacher  removed 
in  his  favor  ;8  and  the  question  as  to  who  is  a  legal  teacher 
cannot  be  determined  in  an  action  to  restrain  one  who  assumes 
to  act  as  such  from  interfering  with  the  school.7 

§  263.  Teacher,  dismissal,  etc. — In  Cal.,  where  teacher 
has  city  certificate  and  is  elected  to  teach,  the  board  of  educa- 
tion cannot  dismiss  or  reduce  to  lower  grade  except  for  causes 
stated  in  statute ;  and  where  statute  that  prevents  removal  of 
teacher  was  passed  after  election  of  a  teacher,  it  will  apply  to 
such  teacher.8  When  a  teacher  is  discharged  without  cause  be- 
fore the  close  of  a  term,  the  district  will  be  liable  to  him  for 


iSearsmont  v.  Farwell,  3  Me.   (3  Greenl.) 

450. 

2  Jackson  v.  Hampden,  16  Me.  184. 
»  Hull  v.  Ind.  Dist.  Aplington,  (Iowa)  46  N. 

W.  1053;  48  N.  W.  82. 


<Jones  v.  Neb.,  1  Neb.  176. 
*McCutchen  v.  Windsor,  55  Mo.  149. 
8  State  v.  Leonard,  3  Tenn.,  ch.  177. 
i  Soldier  Dist.  Tp.  v.  Barrett,  47  Iowa,  110. 
8  Kennedy  v.  Bd.  Ed.,  82  Cal.  483. 


TEACHERS'  INSTITUTES. 


295 


damages.1  Under  Tenn.  Acts  1873,  ch.  25,  §  20,  sub-sec.  3,  the 
right  to  dismiss  a  teacher  already  employed  under  a  valid  con- 
tract can  be  exercised  only  after  notice  and  for  cause.2  Prin- 
cipal of  normal  school  established  under  N.  Y.  Laws  1866 
cannot  be  removed  by  superintendent  of  public  instruction  with- 
out assent  of  local  board.3  A  reduction  in  rank  and  pay  of  a 
teacher  to  another  and  lower  grade  is  same  as  a  discharge  ;  and 
this  cannot  be  done  in  New  York  city  by  trustees  of  the  ward, 
except  by  written  approval  of  majority  of  district  inspectors, 
and  on  appeal  of  board  of  education.*  Some  authorities  hold 
that  a  teacher  is  entitled  to  a  formal  trial  to  determine  as  to  in- 
competency,  negligence,  or  injury  to  the  district  in  retaining 
him.5  Where  a  school  teacher  is  discharged  without  cause,  she 
may  recover  the  amount  of  her  wages  according  to  her  contract, 
unless  she  could  have  procured  similar  employment,  the  burden 
of  proving  which  is  on  the  board  ;6  and  an  instruction  where 
teacher  had  been  improperly  discharged  imposing  upon  the 
plaintiff  the  burden  of  proving  that  he  had  tried  and  failed  to 
get  other  employment,  should  not  be  given.7  Regents  of  agri- 
cultural college  making  contract  with  teacher,  of  three  months' 
mutual  notice  to  quit,  except  in  cases  of  gross  misconduct,  held 
liable  for  salary,  when  they  discharge  without  notice  and  with- 
out cause  ;8  and  a  teacher  wrongfully  dismissed  is  entitled  to  re- 
cover for  the  balance  of  the  salary  contracted  for.9 

§  264.  Teachers'  institutes.— The  duty  of  N.  H.  towns  to 
pay  for  the  support  of  teachers'  institutes  a  sum  equal  to  two 
per  cent,  of  the  amount  required  by  law  to  be  raised  for  the 


i  Scott  v.  Joint  Sch.  Diet.,  51  Wis.  554. 

ZMorley  v.  Power,  5  Lea  (Tenn.)  691. 

B  People  v.Hyde,  89  N.Y.I  1. 

*  In  re  Gleeee,  50  N.  Y.  Super.  Ct.  473 ;  67  How. 

( N.  Y.)  Pr.  372. 
CMurdock  v.  Phillips  Acad.,  29  Mass.  244; 

Searmont  v.  Farwell,  3  Greenl.  (Me.)  450; 

Morley  v.  Power,  ( Sup.  Ct.  Tenn.)  12  Cen. 

Law  J.  540. 


«Sch.  Dist.  v.  Stilley,  36  111.  App.  133. 
1  Doyle  v.  Sch.  Dist,,  36  111.  App.  653. 
8Bd.  Regents  v.  Mudge,  21  Kas.  223. 
9  E wing  v.  Sch.  Dirs.,  2  111.  App.  458. 


296  PUBLIC   SCHOOL   LAW. 

maintenance  of  the  schools  is  imperative  ;*  and  mandamus  may 
issue  to  compel  the  payment  of  the  money  by  the  selectmen  to 
the  school  commissioners  of  the  county.1 

§  265.  Teacher's  liability.— The  teacher  is  not  liable  to 
an  action  by  a  parent  for  refusing  to  instruct  his  children.2  A 
teacher  may  use  such  force  as  is  necessary  to  take  a  pistol  from 
his  pupil.3  A  rule  requiring  tardy  pupils  to  wait  until  opening 
exercises  are  over  before  entering  the  room  is  to  be  enforced 
with  regard  to  health  and  physical  condition  of  pupil,  and  de- 
pends upon  each  particular  emergency  ;*  whether  a  rule  is  rea- 
sonable is  a  question  for  the  court,  and  a  school  officer  is  not 
personally  liable  for  mere  mistake  of  judgment.6  Whether 
mandamus*  can  be  issued  in  any  case  to  the  teacher  of  a  public 
school  to  compel  him  to  reinstate  a  suspended  pupil,  is  a  ques- 
tion.* (See  "Pupil,"  "Punishment,"  "Rules,"  etc.) 

§266.  Term,  time.  —  In  Mo.  the  power  conferred  on  the 
annual  meeting  of  school  district  to  determine  the  length  of 
school  year  applies  to  current  year,  and  an  annual  meeting 
cannot  order  three  months'  school  prior  to  commencement  of 
school  year,  the  school  year  having  been  changed  by  legisla- 
ture.7 Under  the  Iowa  Code,  §  1727,  requiring  school  in 
sub-district  twenty-four  weeks  in  a  year  unless  the  county 
superintendent  excuses,  a  resolution  by  directors  for  less  hours 
is  valid,  although  the  superintendent's  consent  is  obtained  after- 
wards.8 

§  267.  Text-books,  adoption. — Act  1875,  Cal.,  continuing 
text-books  in  use,  was  repealed  by  new  constitution.9  Each 
board  of  education  in  Cal.  may  adopt  text-books  as  to  its  own 

iHall  v.  Selectmen,  etc.,  39  N.  H.  511.  estate  v.  Barton,  45  Wis.  150. 

2Spear  v.  Cummings,  23  Pick.  (Mass.)  224.  7Matney  v.  Boydston,  27  Mo.  App.  36. 

"Metcalf  v.  State,  21  Tex.  App  174.  «  Harrington  v.  Liaton  Diet.  Tp.,  47  Iowa,  11. 

<Fertich  v.  Miehener,  (Ind.)  14  N.  E.  68.  »  People  v.  Bd.,  55  Cal.  331. 
6Fertich  v.  Michener,  (Ind.)  11  N.  E.  605. 


TEXT-BOOKS,  CHANGE.  297 

jurisdiction.1  A  meeting  adopting  text-books  will  be  presumed 
to  have  been  a  regular  meeting.2  Reasonable  notice  is  required, 
but  it  may  be  waived.2  The  Ind.  statute  of  1881  does  not  au- 
thorize a  trustee  to  buy  text-books  for  pupils ;  and  the  use  of 
the  same  does  not  create  any  liability.8  The  Ind.  Const,  makes 
it  the  duty  of  the  legislature'" to  provide  by  law  for  a  general 
and  uniform  system  of  common  schools,"  and  the  standard  of 
text-books  and  method  of  obtaining  same  is  for  the  legislature, 
and  not  a  matter  of  local  power.*  Ch.  160,  Md.  act  of  1865, 
provides  a  system  for  the  state,  and  is  operative  in  Baltimore, 
and  vests  in  the  state  board  of  education  the  exclusive  power 
and  authority  of  selecting  and  prescribing  the  text-books  to  be 
used  in  that  city.5  In  Mass.,  under  the  act  of  1826,  school  com- 
mittees may  purchase  books  and  make  themselves  the  creditors 
of  the  town.6  Minn.  Laws  1877,  ch.  75,  "to  provide  uniform 
and  cheap  text-books  for  the  public  schools  of  Minnesota,"  is 
constitutional  ;7  the  provisions  of  said  ch.  75,  as  applicable  to 
the  common  schools  and  school  districts  of  the  state,  are  not  re- 
pealed by  ch.  74,  except  so  far  as  the  same  is  affected  by  sub.  8, 
§  18,  sub.  7,  ch.  74,  giving  boards  of  education  of  independent 
school  districts  power  to  prescribe  text-books.7  A  resolution  to 
adopt  text-books,  by  Nev.  state  board,  may  be  rescinded  before 
adoption  by  school  districts.8 

§268.  Text-books,  change. — Where  proposition  to  fur- 
nish text-books  is  accepted  and  time  is  not  mentioned,  evidence 
cannot  show  that  a  certain  time  was  intended ;  and  the  law 
prohibiting  changes  in  text-books  in  six  years  does  not  apply  to 
cities ;  besides,  changes  could  be  made  by  unanimous  consent  of 


i  People  v.  Bd.,  55  Cal.  331. 
*  People  v.  Faust,  32  111.  App.  242. 
«  Honey  Creek  Sch.  Tp.  v.  Barnes,  119  Ind.  213. 
«  State  v.  Haworth,  122  Ind.  462;    Same  v. 
Blue,  122  Ind.  600. 


e  Sch.  Comm'rs  etc.  v.  State  Bd.  Ed.,  26  Md. 

505. 

«Hartwell  v.  Littleton,  13  Pick.  (Mass.)  229. 
i  Curry er  v.  Merrill,  25  Minn.  1. 
estate  v.  Nev.  Bd.  Ed.,  18  Nev.  173. 


298 


PUBLIC   SCHOOL   LAW. 


board ;  and  the  fact  that  a  contemplated  change  is  contrary  to 
a  by-law  is  no  difference  where  by-law  can  be  changed  by  two- 
thirds  vote.1  Under  70  Ohio  Laws  209,  §  52,  where  certain 
text-books  were  adopted  there  could  be  no  change  for  three 
years  without  the  consent  of  three-fourths  of  members  of  board 
at  a  regular  meeting,  and  mandamus  would  lie  to  compel  use 
and  prevent  change.2  In  suit  for  mandamus  to  compel  adop- 
tion of  certain  school-books,  demand  must  be  first  made ;  plain- 
tiffs must  have  identity  of  interests;3  and  injunction  to  protect 
the  interests  of  the  public  can  only  be  granted  at  the  instance 
of  a  public  officer,  and  where  certain  patron  desires  to  prevent 
the  use  of  a  certain  text-book  and  compel  the  use  of  another,  he 
must  show  legal  adoption  of  the  one  desired,  and  damages 
from  any  change.*  Use  illegally  adopted  may  be  enjoined  by 
a  private  individual  where  those  in  use  had  been  legally 
adopted,  and  the  change  would  interfere  with  scholar's  use;4 
but  injunction  will  not  be  granted  to  prevent  school  board 
adopting  another  reader,  it  not  being  shown  that  the  first  was 
legally  adopted.*  The  Mich,  act  of  1887  prohibiting  change  in 
text-books  for  five  years,  applies  to  city  of  Detroit,  and  after 
adoption  and  6,000  copies  received  by  the  board,  it  could  not 
reconsider  the  resolution  adopting.5  Certiorari  cannot  lie  to 
review  change  of  text-books  by  board  education,  in  Cal.6  The 
state  board  education  in  Cal.  could  not  change  the  books 
once  adopted  as  a  part  of  a  uniform  series  without  giving  six 
months'  notice  ;7  and  notice  to  change  text-books  by  the  publi- 
cations in  a  newspaper  as  a  matter  of  news,  is  not  sufficient 
notice.7 


alvison  v.  Bd.  Sch.  Comm're,  39  F.  R.  735. 
2  State  v.  Columbus  Bd.  Ed.,  35  Ohio  St.  368. 
•Dobbs  v.  Stauffer,  24  Kas.  127. 
*Sch.  Dist.  v.  Shadduck,  25  Kas.  467. 


5  Jones  v.  Bd.  Ed.  Detroit,  50  N.  W.  309. 

« People  v.  Bd.  Ed.,  54  Cal.  375. 

7 People  v.  State  Bd.  Ed.,  49  Cal.  684. 


TEXT-BOOKS,  PUPIL. 


§269.  Text-books,  free. — The  school  board  of  a  city  has 
no  power  to  furnish  text-books  free  unless  authorized  to  do  so 
by  legislature.1 

§  270.  Text-book,  German. — Act  Ind.  Mch.  3, 1871,  which 
transfers  the  control  of  the  public  schools  of  Indianapolis  to  the 
board  of  school  commissioners,  does  not  repeal  or  modify  the 
law  regulating  the  study  of  German  ;2  and  it  is  no  reason  for  re- 
fusing to  introduce  German  in  a  school  that  there  are  no  funds 
therefor,  when  studies  not  required  are  pursued  at  a  greater  ex- 
pense.2 Under  Kev.  Stat.  Ind.  1881,  p.  4497,  the  parents  of 
twenty-five  children  attending  one  school  in  a  city  may  compel 
the  introduction  of  German  into  the  curriculum  of  such  school, 
even  in  the  lower  grades.2  The  St.  Louis  board  directors  may 
require  more  than  simply  the  rudiments  to  be  taught.3  The 
right,  in  union  school  districts  of  Mich.,  to  levy  taxes  for  high 
schools  and  to  make  free  the  instruction  of  children  in  other 
languages  than  the  English,  was  sustained.* 

§271.  Text-books,  studies. — There  is  nothing,  either  in 
state  policy,  or  in  constitution,  or  laws,  of  Mich.,  restricting  the 
primary  school  districts  of  the  state  in  the  branches  of  knowl- 
edge which  may  be  taught,  or  instruction  that  may  be  given,  if 
the  voters  of  the  district  consent,  or  to  prevent  instruction  in  the 
classics  and  living  modern  languages.4 

§272.  Text-books,  pupil. — There  is  no  implied  contract 
between  a  teacher  and  a  pupil  in  the  public  schools  that  the 
former  shall  teach  the  latter ;  so  held,  where  a  teacher  refused 
to  hear  the  pupil  recite  any  lesson  in  any  study  unless  he  would 
procure  a  copy-book  and  take  lessons  in  a  certain  system  of  pen- 


1  Bd.  Ed.  v.  Common  Council  Detroit,  ( Mich.) 

45  N.  W.  585. 
JBd.   Sch.  Comm'rB  v.   State,  (Ind.)  28  N. 

E.  61. 


8 Roach  v.  St.  Louis  S.  B.,  77  Mo.  484. 
*  Stewart  v.  Sch.  Dist.,  30  Mich.  6'.). 


300 


PUBLIC   SCHOOL   LAW. 


manship.1  The  failure  of  pupil  to  study  one  or  more  branches 
in  the  course,  so  long  as  the  other  branches  are  kept  up,  will 
not  justify  expulsion.8  Under  111.  Eev.  Stat,  p.  962,  §  48, 
empowering  the  township  trustees,  as  to  high  schools,  to  direct 
what  branches  of  study  shall  be  taught,  etc.,  the  right  of  the 
parent  to  select  the  branches  to  be  studied  by  the  child,  is  only 
withdrawn  to  the  extent  that  its  exercise  will  not  interfere  with 
the  system  prescribed.  No  particular  branch  of  study  is  com- 
pulsory on  those  who  attend  school  ;3  so  where  trustees  refused 
to  admit  a  pupil  who  passed  a  satisfactory  examination  in  all 
the  studies  except  grammar,  which  his  father  did  not  wish  him 
to  study,  any  rule  excluding  the  son  from  admission  as  to  the 
other  studies,  on  that  ground,  was  unreasonable,  and  could  not 
be  enforced.3  In  111.  a  pupil  cannot  be  expelled  for  refusing, 
by  direction  of  parents,  to  pursue  a  branch  of  study  assigned  by 
the  directors,  but  not  prescribed  by  law.4  The  school  trustees 
of  a  high  school  may  prescribe  the  courses  of  study  and  text- 
books for  the  use  of  the  school ;  the  parent,  however,  has  a  right 
to  make  a  reasonable  selection  from  the  prescribed  studies  for 
his  child  to  pursue ;  and  this  selection  must  be  respected  by  the 
trustees,  as  the  right  of  the  parent  in  that  regard  is  superior  to 
that  of  the  trustees  and  the  teacher.5  A  pupil  may  be  excused, 
by  parental  objection,  from  pursuing  certain  studies.6  Where  a 
father  had  directed  his  child  to  pursue  only  certain  studies 
selected  from  those  required  by  law,  and  forbade  the  child  to 
pursue  a  certain  other  study,  and  this  was  known  to  the  teacher, 
such  teacher  was  not  authorized  to  inflict  corporal  punishment 


iStuckey  v.  Churchman,  2111.  App.  584. 
2Trs.  v.  People,  87  111.  303;  Morrow  v.  Wood, 

35  Wis.  59;  Perkins  v.  Bd.,  (Iowa)  9  N. 

W  Rep.  356;  Rulison  v.  Post,  79  111.  567; 

Guernsey  v.  Pitkin,  33  Vt.  224. 


s  Lake   View   Sen.    Trs.  v.  People,    87   111. 

303. 

^Rulison  v.  Post,  79  111.  567. 
estate  v.  School  District,  (Neb.)  48  N.  W. 

393. 
e  Morrow  v.  Wood,  35  Wis.  59. 


TEXT-BOOKS.  301 


upon  the  child  for  the  purpose  of  compelling  it  to  pursue  the 
study  so  forbidden  by  the  father.1 

§  273.  Text-books. — In  the  case  of  Effingham,  Maynard  & 
Co.  v.  Olson,  May  1891,  Kas.  Sup.  Ot,  the  court  held:  "The 
attorney  for  the  defendant,  in  his  brief  in  this  court,  claims  that 
no  sufficient  bond  under  the  statute  was  ever  given.  His  lan- 
guage is  as  follows:  'The  act  providing  for  a  uniform  series  of 
text-books  (§  5)  prescribes  that  no  text-books  shall  be  prescribed 
in  pursuance  of  the  provisions  of  this  act  unless  the  publisher 
thereof  shall  first  file  with  the  county  superintendent  of  public 
instruction  a  guarantee  of  its  price  and  quality,  and  permanence 
of  supply  for  five  years,  together  with  a  good  and  sufficient 
bond  for  the  faithful  compliance  with  said  guarantee,  condi- 
tioned in  such  sum  as  the  county  text-book  board  shall  deter- 
mine and  approve.'  Now  this  is  the  allegation  in  the  petition 
of  the  relator :  4  That  they  executed  a  good  and  sufficient  bond 
in  the  manner  prescribed  by  law,  and  that  said  bond  was  con- 
ditioned that  the  said  plaintiffs  would  furnish  the  books  in  ac- 
cordance with  the  said  guarantee  and  proposition.'  Now  it  is- 
absolute  that  this  statute  makes  the  execution  of  the  bond  and 
guarantee  a  prerequisite  to  the  award ;  that  no  award  shall  be 
made  until  after  the  bond  and  guarantee  are  filed  with  the  text- 
book board  —  and  not  only  that,  but  until  after  its  approval,, 
and  the  amount  shall  be  fixed  and  the  bond  approved  by  the- 
text-book  board. 

"Now  assuming  that  this  was  a  de  facto  board :  All  the  acts 
which  it  undertook  to  perform,  so  far  as  this  bond  is  concerned, 
were  absolutely  void  under  the  statute.  The  evidence  shows 
that  a  committee  was  appointed  to  accept  this  bond  and  ap- 

i  Morrow  v.  Wood,  35  Wis.  59. 


302  PUBLIC   SCHOOL   LAW. 


prove  it,  and  that  no  definite  amount  was  fixed  except  $10,000. 
That  the  board  adjourned  sine  die,  and  that  after  this  adjourn- 
ment, this  committee,  composed  of  two  members  of  the  board 
and  the  county  attorney,  who  was  not  a  member  of  the  board 
-and  who  had  no  business  there  so  far  as  we  can  learn  from  the 
statute,  made  and  fixed  the  amount  of  the  bond  at  $4,000,  but 
failed  to  approve  it  so  far  as  the  bond  itself  shows,  which  is  at- 
tached to  the  deposition  of  the  defendant.  The  evidence  shows, 
at  least  inferentially,  that  this  committee  undertook  to  approve 
this  bond,  but  the  board  had  adjourned  and  was  'functus  officioj 
and  that  afterward  this  bond  in  its  present  condition  was  re- 
turned to  the  county  superintendent  of  public  instruction.  No 
action  of  the  board  was  ever  taken  approving  the  bond.  Now 
then,  the  relators  themselves  have  failed  to  comply  with  the 
plain  requirements  of  the  statute,  and  being  in  default,  have  no 
obligation  resting  upon  them,  cannot  now  ask  the  order  of  this 
court  to  issue  the  writ  to  compel  compliance  with  the  conditions 
of  their  award.  The  text-book  board  had  no  authority  to  delegate 
this  power  to  a  committee,  not  even  of  its  own  members.  What- 
ever power  or  authority  this  text-book  board  had,  had  been  con- 
ferred by  the  act  itself,  and  they  could  take  nothing  by  implication. 
This  writ  never  issues  in  doubtful  cases.  (High's  Ex.  Legal 
Remedies,  §  9.)  And  to  warrant  the  court  in  granting  the  writ, 
all  the  facts  must  appear  so  clear  that  his  right  to  the  same  can- 
not be  doubted,  and  it  will  not  be  granted  to  compel  the  per- 
formance of  an  official  act  where  substantial  doubt  exists  as  to 
the  duty  of  the  officer  to  perform  it.  (Ex  parte  Barnwell,  8  Rich. 
N.  S.  264.) 

"No  reply  to  this  portion  of  the  defendant's  brief  has  been 
made  by  counsel  for  the  plaintiff.     The  statute  ( said  §  5 )  evi- 


TEXT-BOOKS.  303 


dently  means  that  no  text-book  shall  be  prescribed  or  awarded 
until  after  the  proper  bond  has  been  given.  Of  course  the 
board  might  indicate  what  books  it  would  prescribe,  and  then 
while  the  board  is  still  in  session  or  before  it  finally  adjourns  a 
proper  bond  to  the  satisfaction  of  the  board  could  be  given,  and 
then  the  award  would  be  made  or  become  final.  This  was  not 
done  in  the  present  case.  The  minutes  of  the  meeting  show 
that  the  board  fixed  the  amount  of  the  bonds  at  $10,000,  and  no 
other  amount  was  mentioned,  and  then  the  board  appointed  a 
committee  consisting  of  the  president,  secretary  and  attorney  to 
draw  up  the  bonds ;  but  the  board,  according  to  the  minutes,  did 
not  give  authority  to  such  committee  to  fix  the  amount  of  any 
bond,  or  to  change  the  amount,  or  to  pro-rate  between  bonds,  or 
to  approve  any  bond,  or  the  amount  thereof,  or  the  security 
thereon.  In  fact,  according  to  the  minutes,  no  power  was  given 
to  this  committee  except  to  'draw  up  bonds.'  The  bond  in  all 
cases  should  be  drawn  up  and  presented  to  the  board  while  it  is 
in  session  or  before  it  finally  adjourns ;  but  in  this  case  it  was 
not.  The  question  whether  the  board  could  delegate  its  power 
to  a  committee  is  not  fairly  presented  in  this  case,  and  we  shall 
not  decide  it.  Under  the  evidence  in  the  present  case  we  can- 
not say  that  the  plaintiff  company  complied  with  the  statutes  in 
executing  the  required  bond,  and  therefore  we  cannot  say  that 
it  is  entitled  to  a  peremptory  writ  of  mandamus  to  compel  the 
county  superintendent  to  perform  an  act  which  he  is  not  re- 
quired to  perform  unless  such  a  bond  has  in  fact  been  given." 
§274.  Text-books. — "Judge  Cooley  says  that  'It  is  held 
competent  for  the  state  to  contract  with  a  purchaser  to  supply 
all  the  schools  of  the  state  with  text-books  of  a  uniform  charac- 
ter and  price.'  (Const.  Lim.,  5th  ed.,  225,  n.  1.)  In  Ourryer 


304  PUBLIC   SCHOOL   LAW. 

v.  Merrill,  25  Minn.  1,  (33  Am.  R.  450,)  it  was  held  that  the 
state  might  purchase  books  and  compel  the  patrons  of  the 
school  to  buy  the  books  from  its  officers.  The  question  was 
presented  in  Bancroft  v.  Thayer,  5  Sawyer,  502,  in  substan- 
tially the  same  general  form  as  it  is  here,  and  it  was  held  that 
a  state  may  provide  by  legislation  that  a  designated  person 
shall  have  the  exclusive  privilege  of  furnishing  all  the  text- 
books needed  for  the  use  of  the  public  schools.  This  decision 
was  made  upon  the  constitution  of  Oregon,  which  is  very 
similar  to  ours,  and  the  right  to  make  such  a  contract  is  re- 
ferred to  the  police  power,  the  court  saying:  4To  authorize 
and  provide  that,  by  means  of  contract  or  legislative  grant,  a 
particular  person  or  persons  shall  have  the  exclusive  right  to 
do  or  furnish  a  particular  thing,  upon  certain  conditions,  for 
the  use  and  convenience  of  the  public,  has  always  been  a  com- 
mon mode  of  exercising  the  police  powers  of  the  state.'  In 
State  ex  Tel.  v.  State  Board  of  Education,  18  Nev.  173,  the 
power  of  the  legislature  to  require  the  adoption  and  use  of  the 
books  of  a  designated  publisher  was  assumed  to  exist  by  court 
and  counsel,  and  this  is  true  of  the  case  of  People  ex  rel.  v. 
State  Board  of  Education,,  55  Cal.  331.  The  court  held  in 
People  ex  rel.  v.  State  Board  of  Education,  49  Cal.  684,  that 
'the  decision  of  the  state  board  of  education  as  to  the  text- 
books that  should  be  used  was  final,  and  must  be  obeyed  by  all 
of  the  local  boards  and  officers.  These  authorities,  and  those 
to  which  we  have  heretofore  referred,  seem  to  us  to  so  con- 
clusively settle  the  question  as  to  leave  no  room  for  debate.' ' 

§  275.  Text-books. — In  Jones  v.  Bd.  of  Ed.  of  Detroit,  50 
N.  W.  Eep.  309,  it  was  held :  "Act  Mich.  1887,  No.  165,  §  15, 
provides  that  when  school  boards  have  adopted  text-books  they 


TEXT-BOOKS.  30  5 


shall  not  be  changed  for  five  years  without  the  consent  of  a 
majority  of  the  voters  of  the  district,  and  that  the  act  shall 
apply  to  all  schools,  including  those  in  cities.  Held,  that  the 
act  applies  to  the  city  schools  of  D.,  though  organized  under 
special  act  Feb.  24,  1869,  which  conferred  on  the  school  board 
of  D.  'full  power  and  authority  to  make  by-laws  and  ordinances 
in  relation  to  the  regulation  of  its  schools,  and  the  books  used 
therein.'  The  fact  that  such  special  act  made  no  provision  for 
an  annual  meeting  of  the  voters  of  D.,  fails  to  show  the  inten- 
tion of  the  legislature  to  not  make  the  general  law  applicable 
to  the  schools  organized  under  the  special  act. 

"As  the  power  to  adopt  text-books  was  conferred  by  act 
Mich.  188T,  No.  165,  on  school  boards,  a  rule  of  the  school 
board  of  the  city  of  D.,  fixing  a  time  for  the  reconsideration  of 
a  resolution  adopting  a  certain  text-book,  cannot  affect  such 
resolution. 

"After  the  school  board  of  the  city  of  D.  had  adopted  a  cer- 
tain text-book,  and  6,000  copies  of  it  were  received  by  the 
school  superintendent  and  sold  to  patrons  of  the  school,  the 
board  had  no  right  to  reconsider  the  resolution  adopting  such 
book.  .  .  . 

"The  respondent  provided  by  rule  that  a  motion  to  recon- 
sider shall  be  in  order  only  at  the  same  or  first  subsequent 
meeting ;  and  no  resolution  shall  be  acted  upon  at  the  meeting- 
at  which  it  is  introduced  if  objected  to  by  any  member,  but 
shall  lie  upon  the  table,  to  be  taken  up  as  unfinished  business 
at  the  next  or  any  subsequent  meeting.  As  above  shown, 
action  was  taken,  and  the  board  adjourned ;  the  publishers  of 
the  book  adopted  and  the  patrons  of  the  school  had  acted  upon 
it.  We  think,  under  these  circumstances,  the  board  had  no 


306  PUBLIC   SCHOOL    LAW. 

power  to  reconsider  its  action.  The  power  to  adopt  text-books 
is  conferred  by  the  law,  and  cannot  be  affected  by  any  rule  of 
the  board  fixing  a  time  for  the  reconsideration  of  motions  and 
resolutions.  (State  v.  Board  of  Education,  35  Ohio  St.  368 ; 
State  v.  State  Board  of  Education,  18  Nev.  173,  1  Pac.  Kep. 
844.)  We  have  not  before  us  a  case  where  the  motion  to  re- 
consider was  carried  before  the  publishers  and  patrons  of  the 
schools  had  acted  upon  the  faith  of  the  resolution  originally 
adopted,  and  upon  that  we  express  no  opinion.  The  writ  must 
issue  as  prayed." 

§  276.  Text-books. — In  the  case  of  State  v.  Bd.  Ed.,  35 
Ohio  St.  368,  it  was  held :  The  city  of  Columbus,  in  the  state 
of  Ohio,  is  a  school-district  of  the  first  class.  On  the  15th  of 
July,  the  committee  on  text-books  condemned  the  Cornell  series, 
which  had  been  adopted  more  than  three  years  previous,  and 
recommended  a  part  of  the  Eclectic  series.  On  the  12th  of 
August,  at  a  regular  meeting,  a  proposition  was  received  from 
D.  &  P.,  offering  Harper's  geographies  for  the  schools.  The 
report  was  then  amended,  substituting  Harper's  geographies 
for  the  Eclectic  series,  and  this  was  adopted,  and  the  board 
adjourned  —  there  being  no  motion  to  reconsider.  On  the  26th 
of  August,  the  board,  by  a  vote  of  six  to  five,  attempted  to  re- 
consider its  action  on  the  12th  of  August,  and  six  of  the  eleven 
members  claimed  that  this  left  the  Cornell  series  as  text-books. 
In  an  action  to  compel  the  board  to  use  Harper's  geographies,  it 
was  held  that  the  action  of  the  board  on  the  12th  of  August  was 
the  adoption  of  Harper's  geographies  as  text-books,  and  that 
such  text-books  could  not  be  changed  within  three  years  from 
that  date  without  three-fourths  of  the  members  of  the  board 
consentant  at  a  regular  meeting ;  and  the  action  of  a  mere  ma- 


TEXT-BOOKS.  307 


jority  on  the  26th  of  August  did  not  affect  the  action  on  the 
12th,  and  the  board  was  compelled  by  mandamus  to  allow  the 
use  of  Harper's  geographies. 

§277.  Text-books.  —  In  the  case  of  The  State  v.  State 
Board  of  Education,  18  Nevada,  173,  it  was  held:  "The  state 
board  of  education  may,  after  it  has  passed  a  resolution  prescrib- 
ing a  certain  series  of  text-books,  reconsider  its  action  and  rescind 
such  resolution  at  any  time  before  the  adoption  of  such  books 
by  the  different  school  districts.  .  .  . 

"We  shall  concede,  for  the  purposes  of  this  decision,  that  on 
the  first  day  of  December,  1879,  respondent,  the  board  of  edu- 
cation prescribed  Appleton's  Readers  as  text-books  for  the  pub- 
lic schools  of  this  state,  and  that,  if  it  did  not  have  power  to 
reconsider  its  action  then  had,  it  is  now  its  duty  to  cause  those 
readers  to  be  adopted  and  used  in  the  public  schools  for  the 
period  of  four  years.  State  v.  Bd.  Ed.  of  The  City  of  Colum- 
bus, 35  Ohio  St.  368,  is  cited  by  counsel  for  relator  as  being  a 
case  on  all  fours  with  this,  and  we  are  urged  to  follow  the  de- 
cision there  made  as  authority  here.  .  .  .  The  reason  why 
the  Ohio  court  said  the  board  could  not  reconsider  its  former 
vote  or  adoption  was  because  the  statute  prohibited  further  ac- 
tion for  three  years  after  August  12th,  the  time  of  adoption. 
There  is  no  semblance  of  such  prohibition  in  ours.  Here,  text- 
books cannot  be  changed  oftener  than  once  in  four  years. 
There,  they  could  not  be  changed  within  three  years  after  their 
adoption,  and  the  action  of  the  board  alone  constituted  an 
adoption.  Under  our  law  it  is  the  board's  duty  to  prescribe 
and  cause  to  be  adopted  a  text-book  in  reading.  .  .  .  The 
board's  duty  is  to  prescribe  and  cause  to  be  adopted  a  uniform 
series  of  text-books.  The  statute  makes  the  last  duty  as  impera- 


308  PUBLIC   SCHOOL  LAW. 

tive  as  the  first.  The  complaint  made  in  this  case  is  that  the 
board  fails  to  cause  the  adoption  of  text-books  by  it  prescribed. 
By  prescribing  a  text-book  simply,  the  board's  duties  are  only 
half  done.  It  must  also  see  that  the  prescribed  book  is  adopted ; 
and  thereafter,  for  four  years,  it  cannot  be  changed.  This  is 
the  sensible  view  of  the  statute.  The  law  declares  no  means  by 
which  the  board  shall  cause  the  adoption  of  text-books ;  but,  the 
duty  being  enjoined,  a  power  is  given  to  use  such  reasonable 
means  as  are  necessary  for  its  proper  performance.  By  a  judi- 
cious exercise  of  this  power  the  board  need  not  experience  much 
difficulty  in  performing  their  entire  duty.  We  find  no  fault 
with  the  Ohio  decision  under  the  statute  there  in  force.  We 
only  say  that,  under  ours,  it  is  not  in  point.  Counsel  for  re- 
lator  refers  also  to  People  v.  State  Ed.  Ed.,  49  Cal.  684,  where 
it  is  held  that  the  board  could  not  change  text-books  once 
adopted  as  a  part  of  a  uniform  series  without  giving  six  months' 
notice  as  required  by  law.  The  question  there  decided  is  not 
involved  in  this  proceeding,  but  an  examination  of  the  statute 
there  referred  to  shows  a  marked  difference  between  it  and 
ours.  The  eighty-eighth  section  of  the  Cal.  Stat.  provided  that 
the  state  board  of  education  should  prescribe  and  adopt  a  uni- 
form series  of  text-books,  and  that  any  books  once  adopted  in 
the  state  series  should  be  continued  in  use  for  four  years.  In- 
deed, the  substance  of  the  statute  is  that,  when  the  board  once 
adopts  a  text-book,  it  shall  not  thereafter  change  the  same  for 
four  years.  (See  Stat.  Cal.  1869,  1870,  p.  847.)  There,  as  in 
Ohio,  the  board  alone  adopts  the  text-books,  and  thereafter  they 
cannot  be  changed  for  the  period  stated,  except  in  Ohio,  by  con- 
sent of  three-fourths  of  all  the  members  at  a  regular  meeting, 
while  here,  after  the  board  prescribes  the  book,  the  district  must 


TEXT-BOOKS.  309 


adopt  it  as  directed  by  the  state  board ;  and  until  both  are  done, 
there  is  no  change  in  text-books  in  the  sense  of  our  statute." 

§  278.  Text-books. — In  the  case  of  Board  of  Education  of 
the  City  of  Detroit  v.  Common  Council  of  Detroit,  N.  W.  Rep. 
45,  (Mich.  585,)  it  was  held  :  ".  .  .  We  must  therefore  de- 
termine whether  the  item  for  free  text-books  is  legal.  It  has 
never  been  claimed,  so  far  as  we  are  aware,  that  school  boards 
had  the  power  to  furnish  free  text-books  except  by  virtue  of 
special  legislation.  That  this  has  been  the  common  under- 
standing is  evidenced  by  the  fact  that  this  power  has  been 
specially  conferred  upon  some  municipal  corporations,  and  the 
policy  of  its  general  adoption  has  been  discussed  in  the  legis- 
lature, and  bills  have  been  introduced  for  that  purpose.  Such 
a  bill  was  passed  in  1889  — act  No.  147,  Pub.  Acts  1889.  By 
§  6  of  this  act  it  is  provided  that  school  districts  in  cities  organ- 
ized under  special  charters  shall  be  exempt  from  the  provisions 
of  the  act  unless  the  boards  are  authorized  to  proceed  under  it 
by  a  majority  vote  of  the  qualified  electors  of  such  districts. 
No  such  vote  has  ever  obtained,  and  the  relator  has  taken 
no  steps  to  submit  the  question  to  a  vote  of  the  electors.  Its 
action,  therefore,  in  providing  for  free  text-books,  was  abso- 
lutely void.  But  whether  the  common  council  properly  exer- 
cised its  power,  or  not,  is  in  fact  immaterial.  The  writ  of 
mandamus  cannot  be  invoked  to  assist  in  the  enforcement  of  a 
claim  which  is  illegal.  The  writ  must  be  denied,  with  costs  to 
the  respondent." 

§279.  Text-books.  —  In  the  case  of  Western  Publishing 
House  v.  Dist.  Tp.  of  Rock,  (Iowa,)  50  N.  W.  Rep.  551,  it  was 
held  that  "In  an  action  on  contract,  the  complaint  showed  that 
plaintiff  made  a  contract  with  the  members  of  defendant  school 


310  PUBLIC  SCHOOL   LAW. 

district  board  of  directors  for  the  sale  of  eight  copies  of  a  cer- 
tain book  published  by  plaintiff  for  a  price  named,  and  specify- 
ing the  manner  of  shipment  to  the  president  of  the  board ;  that 
1  the  members  of  the  board '  agreed  to  pay  for  the  same ;  that 
plaintiff  was  to  take  in  payment  an  order  on  the  treasurer  of 
the  township ;  that  afterward,  at  a  regular  meeting  of  the  board, 
a  vote  was  passed  to  ratify  the  purchase  of  the  books ;  that  after- 
ward, at  the  regular  annual  meeting  of  the  electors  of  the  town- 
ship, the  board  was  authorized  to  place  a  copy  of  the  book  in 
each  of  the  sub-districts  in  the  township ;  that  afterward,  at  a 
regularly  called  meeting  of  the  board,  a  resolution  was  adopted 
repealing  the  ratification  of  the  contract ;  that  the  books  were 
shipped  in  accordance  with  the  order,  and  were  yet  in  the  ex- 
press office,  awaiting  the  acceptance  of  defendant.  Held,  that 
the  contract  alleged  did  not  purport  to  be  a  contract  of,  or  bind- 
ing on,  defendant,  or  that  the  alleged  purchase  was  made  for 
the  use  of  defendant,  or  pursuant  to  its  authority  or  order. 

"Since  the  contract  declared  on  did  not  bind  defendant,  it 
could  not  ratify  it,  as  a  ratification  would  create  a  contract  other 
than  the  one  declared  on.  .  .  . 

"A  consideration  of  the  agreement  upon  which  plaintiff  bases 
its  right  to  recover,  discloses  the  fact  that  it  does  not  purport 
to  be  the  contract  of  the  defendant,  the  school  district,  and 
that  there  is  not  one  word  in  it  indicating  the  purpose  of  the 
directors  to  bind  the  district,  or  the  intention  of  plaintiff  to  re- 
quire it  to  be  bound  by  the  agreement.  The  obligors  in  the 
instrument  described  themselves  as  directors  of  the  school  dis- 
trict ;  but  it  does  not  appear  that  the  goods  sold  were  bought 
for  the  use  of  defendant,  or  pursuant  to  its  authority  or  order. 
It  is  stipulated  in  the  contract  that  the  goods  shall  be  shipped 


TEXT-BOOKS.  311 


to  the  directors,  not  to  defendant  or  its  officers.  On  the  face 
of  the  instrument  it  is  plainly  shown  that  the  persons  who 
signed  the  instrument,  and  who  are  designated  therein  as  l  di- 
rectors,' are  alone  bound  by  it  as  obligors.  Plaintiff  agrees  in 
the  instrument  to  accept  in  payment  an  order  or  warrant  issued 
by  defendant,  but  this  stipulation  does  not  bind  it  to  look  to 
defendant  for  payment,  or  make  the  instrument  its  contract. 
Upon  the  face  of  the  instrument  the  defendant  is  not  bound, 
and  the  intention  clearly  appears  to  bind  the  signers  individ- 
ually. The  petition  does  not  allege  or  show  that  defendant  is 
bound  by- the  contract,  or  was  intended  by  the  parties  to  be 
bound.  It  specifically  alleges  that  the  'members  [of  the  board 
of  directors]  agree  to  pay  for  the  books.'  It  alleges  that  the 
books  were  'ordered  by  said  members  of  said  board  of  di- 
rectors for  the  use  and  benefit  of  defendant  in  its  schools.'  It 
is  not  alleged  that  the  contract  was  made  pursuant  to  any  prior 
order,  request,  or  authority  of  defendant ;  and  it  is  averred  that 
the  books  'are  now'  in  the  express  office,  thus  showing  and 
averring,  negatively,  that  the  goods  have  never  come  into  pos- 
session of  defendant,  and  have  never  been  used  in  its  schools. 

"The  plaintiff,  while  inferentially  conceding  that  the  contract 
was  made  without  authority,  insists  that  it  was  afterwards  rati- 
fied. But,  as  the  contract  did  not  purport  to  bind  defendant,  it 
could  not  ratify  it.  There  is  no  such  thing  as  the  ratification  of 
a  contract  by  an  obligor  made  by  another,  when  it  does  not 
purport  to  bind  him  but  binds  the  other.  In  such  a  case  the 
obligor  cannot  be  bound  by  a  ratification.  He  can  only  become 
bound  by  a  new  contract  assuming  or  adopting  the  obligation 
of  the  prior  one.  If  it  be  assumed  that  the  defendant  did  adopt 
the  contract,  (which  is  not  alleged  in  the  petition,)  it  must 


312  PUBLIC   SCHOOL   LAW. 

appear  what  the  terms  of  the  contract  adopting  it  are,  and  that 
they  have  been  performed.  But  no  such  showing  is  made  in 
the  petition. 

"If  the  action  of  the  board  of  directors  of  March  llth  be  re- 
garded as  the  adoption  of  the  individual  contract  of  the  direct- 
ors, it  does  not  appear  that  plaintiff  assented  to  or  accepted  it 
at  any  time.  Nor  is  it  shown  that  defendant  acquired  the  right 
under  such  adoption,  by  the  assent  of  the  plaintiff,  to  take  the 
property.  It  is  not  shown  that  plaintiff  in  any  way  accepted 
such  adoption  of  the  contract  so  as  to  bind  the  defendant. 
Until  that  was  done,  it  could  withdraw  its  adoption  of  the  con- 
tract, which  it  did  do  by  the  resolution  and  action  of  its  board 
of  directors  in  their  meeting  of  March  18,  1889. 

"We  reach  the  conclusion  that  the  contract  was  not  intended 
to  bind  defendant,  and  therefore  was  not  ratified  by  it,  and  that, 
if  the  act  claimed  to  be  a  ratification  may  be  regarded  as  a  con- 
tract of  adoption,  it  was  rescinded  before  it  was  accepted  and 
plaintiff  acquired  thereby  any  rights  by  reason  of  such  adoption. 
These  considerations  lead  us  to  the  conclusion  that  the  judg- 
ment of  the  district  court  ought  to  be  affirmed." 

§  280.  Title,  property. — The  legislature  may  provide  for 
change  in  trusteeship  of  property  where  town  succeeds  town- 
ship, etc.1  A  lease  during  the  time  the  land  is  occupied  for 
school  purposes  is  not  contrary  to  statute  requiring  convey- 
ances for  school  purposes  to  be  in  fee  or  ninety-nine  year  lease.* 
Where  a  bequest  was  being  properly  administered,  there  was  no 
necessity  to  appoint  special  trustees.3  In  Minn.,  the  title  to  land 
of  a  district  is  in  the  district,  and  not  in  trustees,  and  they  cannot 
of  themselves  make  a  mortgage  without  authority.4  .  .  . 

i  Allen  Sch.  Tp.  v.  Macy  Sch.  Tp.,  109  Ind.  559.    I    8Myers  v.  Sch.  Trs.,  21  111.  App.  223. 
.  Dist.  v.  Everett,  52  Mich.  314.          |    *Sanborn  v.  Sch.  Diet.,  12  Minn.  17. 


TRESPASS,  TAX,  ETC. 


313 


§  281.  Town  corporation. — Under  Sayles'  Ann.  St.  Tex., 
art.  541,  authorizing  "towns  and  villages"  to  incorporate  for 
school  purposes  only,  a  tract  of  twenty-eight  square  miles,  not 
more  than  two  of  which  are  a  town,  cannot  be  incorporated  as 
a  town  for  school  purposes  only.1 

§  282.  Town-site,  constitution. — A  statute  granting  un- 
claimed lots  to  Denver  for  use  of  schools  is  void.2 

§283.  Treasurer. — (See  "Officer,  Liability.")  Treasurer's 
books  and  reports  are  not  conclusive  evidence  against  him.3 
Suit  against  school  treasurer,  for  moneys  not  paid  over,  not 
error  to  refuse  evidence  of  his  private  account  book,  there 
being  no  evidence  that  the  report  required  each  year  had  not 
been  made.*  In  a  suit  on  school  treasurer's  bond,  it  is  not  a 
defense  to  say  he  had  loaned  money  to  a  contractor  for  build- 
ing school-house,  and  had  an  order  from  the  contractor  on  the 
board  for  amount  of  loan  ;5  and  where  he  deposits  money  of  a 
district  in  a  bank  on  his  own  responsibility  or  without  law  re- 
quiring same,  and  the  bank  fails,  he  must  lose  and  not  the  dis- 
trict.6 The  action  by  the  school  trustees  on  the  bond  of  the 
township  treasurer,  under  111.  Kev.  Stat.,  ch.  122,  §§  40,  55,  for 
neglecting  to  pay  over  moneys  to  his  successor,  would  be  per- 
mitted whether  the  apportionment  required  by  §  34  has  been 
made  among  the  several  districts  or  not.7  An  action  on  school 
treasurer's  bond  should  be  in  name  of  district.8  School  treas- 
urer may  qualify  after  twenty  days  from  election,  having  suffi- 
cient cause  for  failing  to  do  so  within  time,  in  Kas.9 

§  284.  Trespass,  tax,  &c. — A  school  district  in  Minn,  is 
liable  in  trespass  for  taking  private  house  for  school  purposes, 


i State  v.  Edison,  (Tex.)  13  S.  W.  263. 
8  City  of  Denver  v.  Kent,  1  Col.  336. 
*Saville  v.  Sen.  Dist.,  22  Kas.  529. 
*Hinton  v.  Sch.  Dist.,  12  Kas.  573. 
*Snyder  v.  Bd.  Ed.,  16  Kas.  542. 


«Sch.  Dist.  v.  Carson,  10  Kas.  238. 
TSch.  Trs.  v.  Stokes,  3  111.  App.  267. 
8Coffman  v.  Parker,  11  Kas.  9;  'Armstrong 

Dnrland,  11  Kas.  15. 
9  Carpenter  v.  Titus,  33  Kas.  7. 


314 


PUBLIC   SCHOOL   LAW. 


under  Laws  1861.1  The  school  authorities  may  exclude  from  their 
grounds  anyone  who  enters  to  disturb  the  peace,  or  interfere 
with  the  exercises  of  the  school ;  beyond  that  they  cannot  exclude 
some  from  exhibitions  to  which  all  the  public  are  invited.* 
Trespass  lies  against  a  collector  who  collects  money  by  distress, 
under  a  warrant  by  the  selectmen  of  the  town  in  which  the 
school  district  was  situated,  to  collect  the  money  voted  to  be 
raised  by  the  district,  when  its  limits  had  not  been  defined  by  a 
legal  vote  of  the  town.8 

§  285.  Truant.— Pub.  St.  Mass.,  ch.  48,  §  14,  provides  for 
the  establishment  of  a  county  truant  school  on  the  requirements 
of  three  "towns,"  and  also  for  the  establishment  of  a  union 
truant  school  for  different  counties  when  required  by  a  stated 
number  of  "towns  or  cities."  Held,  that  the  word  "town,"  in 
the  first  part  of  §  14,  must  be  construed  to  include  cities  ;*  and 
the  Mass,  statute  requiring  county  commissioners  to  establish 
truant  schools  when  required,  is  mandatory  and  not  discre- 
tionary ;6  and  the  legislature  has  the  power  to  establish  reform- 
atory and  industrial  schools,  and  commit  certain  classes  of 
vagrant  pauper  children  to  them.6 

§286.  Truant  school. —  City  of  Lynn  v.  County  Commis- 
sioners, 26  N.  E.  Rep.  (Mass.)  409,  Knowlton,  J.,  it  was  held : 
"Pub.  St.  Mass.,  ch.  48,  §  14,  provides  for  the  establishment  of  a 
county  truant  school  on  the  requirements  of  three  'towns, 'and 
also  for  the  establishment  of  a  union  truant  school  for  different 
counties  when  required  by  a  stated  number  of  'towns  or  cities/ 
Pub.  St.,  ch.  3,  §  3,  cl.  23,  provides  that  the  word  'town '  may  be 
construed  to  include  cities.  The  first  part  of  §  14  is  derived 


i  Gould  v.  Sub-Diet.,  7  Minn.  203. 

2 Hughes  v.  Goodell,  3  Pittsb.  (Pa.)  364. 

s  Johnson  v.  Dole,  3  N.  H.  328. 

*City  Lynn  v.  Co.  Comm'rs,  (Mass.)  26  N.  E. 


6 City  Lynn  v.  Co.  Comm'rs,  148  Maes.  148. 
6  Milwaukee  Ind.  Sch.  Dist.  v.  Supervisors,  40 
Wis.  328. 


TRUANT   SCHOOL.  315 


from  St.  1873,  ch.  262,  §  5,  in  which  the  words  used  were  'cities 
or  towns,'  and  in  the  revision  the  commissioners  omitted  the 
word  'cities.'  Their  first  report  did  not  contain  the  last  part  of 
§  14,  which  was  derived  from  St.  1881,  ch.  144,  and  incorporated 
in  the  report  by  an  amendment  in  which  the  words  '  cities  or 
towns,'  were  retained  as  in  the  original  act.  Held,  that  the 
word  'town,'  in  the  first  part  of  §  14,  must  be  construed  to  in- 
clude cities. 

"By  Pub.  St.,  ch.  3,  §  3,  cl.  23,  it  is  provided  that,  in  the  con- 
struction of  statutes,  'the  word  town  may  be  construed  to  in- 
clude cities.'  If  this  provision  is  applicable  to  the  word  'towns,' 
as  used  in  the  first  part  of  §  14,  of  Pub.  St.,  ch.  48,  the  cities  of 
Lynn  and  Haverhill  are  to  be  counted  as  having  required  the 
county  commissioners  to  establish  a  truant  school,  and  the  votes 
of  Beverly  and  Danvers  to  rescind  their  former  votes  are  im- 
material, and  a  peremptory  writ  of  mandamus  must  be  issued. 
Reading  Pub.  St.,  ch.  48,  §  14,  as  if  it  were  a  single  enactment, 
the  use  of  the  word  towns  alone  in  the  first  part  of  the  section, 
and  of  the  words  'cities  or  towns,'  in  a  similar  connection  in 
the  last  part  of  the  section,  creates  an  ambiguity,  and  raises  a 
doubt  whether  a  distinction  was  not  intended  between  the 
method  of  requiring  the  establishment  of  a  county  truant  school 
under  the  first  part  of  the  section,  and  of  a  union  truant  school 
for  different  counties  under  the  last  part  of  the  section.  But 
upon  considering  the  history  of  the  legislation  the  whole  matter 
becomes  clear.  The  first  part  of  the  section  is  a  re-enactment 
of  St.  1873,  ch.  262,  §  5,  in  which  the  words  used  were  'cities  or 
towns,'  and  the  commissioners,  without  intending  to  change  the 
meaning,  and  evidently  with  a  view  to  conciseness,  omitted  the 
word  '  cities '  as  unnecessary.  Their  first  report  to  the  legisla- 


316  PUBLIC   SCHOOL   LAW. 

ture  did  not  contain  the  last  part  of  §  14,  Pub.  St.,  ch.  48,  and 
this  was  derived  from  a  subsequent  enactment  of  the  legisla- 
ture, (St.  1881,  ch.  144,)  and  incorporated  into  their  report  by 
an  amendment.  In  this  amendment  the  words  '  cities  or  towns ' 
were  retained  as  found  in  the  original  act.  We  are  of  opinion 
that  the  word  'towns,' in  the  first  part  of  the  section,  includes 
cities,  and  that  if  the  towns  of  Beverly  and  Danvers  could 
effectually  rescind  their  action,  after  having  joined  with  other 
towns  in  requiring  the  county  commissioners  to  establish  a 
truant  school,  which  we  do  not  intimate,  there  are  still  more 
than  three  cities  and  towns  continuing  in  the  requirement,  and 
the  order  must  be,  peremptory  mandamus  to  issue." 

§  287.  Trust,  etc.— The  act  of  Neb.  1869,  donating  Capitol 
square  to  the  city  of  Omaha,  "  that  the  said  property  shall  be 
used  by  said  city  for  the  purpose  of  a  high  school,  college,  or 
other  institution  of  learning,  and  for  no  other  purpose  what- 
ever," does  not  include  the  mere  primary  department;  "high 
school"  may  be  defined  as  a  school  where  the  higher  branches 
of  a  common-school  education  are  taught ;  the  substitution  of 
the  board  of  education  for  the  board  of  regents  of  the  high 
school,  by  act  of  1871,  did  not  change  the  trust.1  The  boards 
of  trustees  for  common  schools  in  the  wards  of  the  city  of  New 
York  are  corporations  to  the  extent  of  holding  property  for 
school  purposes.8  Where  land  was  dedicated  by  the  owner, 
partly  for  a  burial-place  and  partly  for  a  school-house  lot,  in 
default  of  the  appointment  of  trustees  by  the  donor  the  man- 
agement of  that  part  dedicated  to  school  purposes  would  devolve 
upon  the  school  directors.3  Where  there  is  a  dedication  of  land 
for  a  school-site,  the  former  owner,  after  the  lapse  of  twenty 

iWhitlock  v.  State,  (Neb.)  47  N.  W.  284.  I    3Pott  v.  Sch.  Dira.,  42  Pa.  SL  132. 

2BeU.s  v.  Betts,  4  Abb.  (N.  Y.)  N.  Cas.  317. 


UNIVERSITIES,  COLLEGES,  ETC. 


317 


years,  was  required  only  to  make  to  the  school  trustees  such  a 
deed  as  would  confirm  that  dedication.1  The  Mclntire  fund, 
given  to  establish  "a  school  in  the  town  of  Zanesville,  for  the 
poor  children  of  said  town,"  is  not  limited  to  that  locality  which 
constituted  the  town  corporate  of  Zanesville  at  the  decease  of 
the  testator,  but  should  be  administered  for  the  benefit  of  poor 
children  in  the  town  of  Zanesville,  according  to  the  most  gen- 
eral and  popular  sense  of  the  term.8  Where  the  donor  of  a  site, 
after  his  offer  had  been  accepted  by  the  district  and  the  building 
commenced,  filed  a  deed  limiting  the  use  to  white  children  only, 
with  a  forfeiting  clause,  it  was  held  that  the  forfeiting  clause 
could  not  be  added.8  When  real  estate  is  conveyed  for  school 
purposes  expressed  in  the  deed,  the  directors  and  trustees  will 
have  no  right  to  sell  the  land  and  apply  the  proceeds  to  school 
purposes.* 

§  288.  Universities,  colleges,  etc. — The  charter  of  a  state 
university  may  be  altered,  amended  or  repealed  at  pleasure  ;5 
and  where  a  college  is  founded  exclusively  by  private  benefac- 
tors, it  does  not  make  it  a  public  institution  by  being  chartered  ;6 
and  the  state  is  not  authorized  to  dispose  of  its  lands  where  it 
is  claimed  that  a  condition  has  been  broken.7  The  Board  of 
Education  of  Illinois,  under  act  of  1857  for  establishment  of  a 
normal  university,  is  a  private  eleemosynary  institution,  and 
not  a  public  corporation.7  In  Ind.  each  county  has  the  right 
to  send  two  students  free  to  the  Indiana  University,  and  to  the 
law  department  as  well  as  to  the  others.8  Under  the  act  of 
1650,  the  property  of  Harvard  College  not  exceeding  £5,000 


iWileon  v.  Scb.  Dire.,  81  111.  181. 
aZaneeville  Canal  etc.  Co.  v.  City  of  Zanes- 

viile,  20  Ohio,  483. 
"Price  v.  Sch.  Dirs.,  58  111.  452. 
«Sch.  Tre.  v.  Braner,  71  111.  546. 
'University  of  Ala.  v.  Winston,  5  Stew.  &  P. 

(Ala.)  25;  University  v.  Maultsby,  Sired. 

(N.  C.)  Eq.  257. 


« Dartmouth  College  v.  Woodward,  4  Wheat. 

518;  Allen  v.  McKeen,  1  Sumn.  276. 
7 Board  v.  Bakewell,  10  N.  li.  378;  Board  v. 

Greenbaum,  39  111.  610. 
8  McDonald  v.  Hagins,  7  Blackf.  525. 


318 


PUBLIC   SCHOOL   LAW. 


should  be  exempt  from  taxation ;  it  was  to  be  exempt  until  its 
value  exceeded  £5,000  a  year.  During  that  time  the  lessee  of 
a  farm  owned  by  the  college  is  not  liable  to  be  taxed  for  the 
farm  in  town  or  county  taxes.1  A  college  has  no  right  to  a 
professor's  private  literary  manuscripts,  although  the  college 
has  aided  him,  by  reason  of  its  facilities,  in  the  preparation  of 
said  manuscripts.2  The  Cornell  University,  of  N.  Y.,  under  its 
charter,  has  no  power  to  take  or  hold  property  valued  more 
than  $3,000,000  in  the  aggregate  ;3  and  it  is  entitled  to  income 
of  the  congressional  agricultural  fund  under  the  act  of  1862 ; 
and  the  trustees  are  entitled  to  the  income  without  any  deduc- 
tion.* Where  a  professor  has  been  advertised  in  a  catalogue 
of  a  university,  is  connected  with  the  institution,  and  has  per- 
formed services,  this  proves  a  contract,  although  there  is  no 
formal  resolution  regarding  it.5  Where  a  student  complies  with 
all  the  regulations  of  the  college,  passes  examination,  and  pays 
the  fees,  the  college  cannot  refuse  to  permit  him  to  take  a  final 
examination.6  Where  a  college  charter  provides  that  the  entire 
management  shall  be  in  a  board  of  trustees,  who  may  make 
rules  and  by-laws  for  the  government  thereof,  and  to  appoint 
a  faculty,  the  trustees  have  certain  judicial  powers,  and  they 
would  not  be  compelled  to  reinstate  a  pupil  who  is  dismissed 
without  a  hearing,  where  it  is  not  shown  that  he  had  applied 
for  a  hearing.7  Brown  University,  of  R.  I.,  having  been  estab- 
lished for  the  purpose  of  agricultural  and  mechanical  arts,  by 
the  state,  is  entitled  to  receive  money  under  the  act  of  congress 
Aug.  30,  1890,  making  appropriations  for  the  benefit  of  agri- 
cultural and  mechanical  arts.8  Where  a  medical  society  was 


i  Hardy  v.  Waltbam,  7  Pick.  (Mass.)  108. 
^Peters  v.  Bourst,  24  Abb.  (New  Caa.)  1. 
*/«  re  McGraw  Estate,  111  N.  Y.  6R. 
<  People  v.  Davenport,  117  N.  Y.  541. 
*Tyler  v.  Tualtin  Academy  etc.,  (Or.)  13Pac. 
329. 


6  People  v.  Belvue  Hospital  College,  14  N.  Y. 

S.  490. 

7  Dunn's  Case,  9  Pa.  Co.  Ct.  Rep.  417. 

s/»  re  Agricultural  Funds,  (R.  I.)  21  A.  916. 


UNIVERSITIES,  COLLEGES,  ETC.  319 

incorporated  with  power  to  organize  a  college,  which  it  did, 
and  the  college  afterwards  became  specially  chartered  by  the 
legislature,  the  act  of  incorporation  of  the  college  was  void  j1 
and  where  a  college  is  incorporated  its  trustees  may  sue  by  the 
corporate  title,  without  setting  out  their  individual  names.2 

§  289.  Universities,  colleges,  etc. — In  the  case  of  Els- 
lerry  v.  Seay,  83  Ala.  Kep.  614,  it  was  held:  "The  Alabama 
University  for  the  Colored  People,  as  established  by  the  act 
approved  February  27th,  1887,  (Sess.  Acts  1886-7,  p.  198,)  be- 
ing under  the  exclusive  control  and  management  of  a  board  of 
trustees  appointed  and  selected  as  therein  provided,  and  not 
subject  to  the  supervision  of  the  state  superintendent  of  educa- 
tion, in  whom  is  vested  the  general  supervision  of  the  public 
schools  as  established  and  regulated  by  constitutional  provisions, 
cannot  be  regarded  as  one  of  these  public  schools ;  and  the 
sums  appropriated  by  said  act  for  the  purchase  of  lands,  the 
erection  of  buildings,  and  the  annual  support  and  maintenance 
of  the  university,  being  '  set  apart  and  appropriated  from  the 
school  fund  for  the  education  of  the  colored  people,'  which  is  an 
unauthorized  perversion  of  the  funds  from  their  only  proper  use, 
such  appropriations  are  unconstitutional  and  void  ;  and  the  other 
parts  of  the  enactment  being  incapable  of  operation,  without 
the  aid  of  these  unconstitutional  provisions,  the  entire  act  is 
void. — A  bill  being  filed  by  citizens  and  tax-payers  to  enjoin 
the  further  payment  of  moneys  out  of  the  state  treasury  in  aid 
of  the  Alabama  colored  university,  on  the  ground  that  the  act 
establishing  it  is  unconstitutional,  the  several  trustees  of  the 
institution,  the  governor  in  his  official  capacity,  the  state  super- 
intendent of  education  as  one  of  the  trustees,  but  not  officially, 

1  State  v.  Hey  ward,  3  Rich.  ( S.  C.)  389.  I    2Le<jrand   v.  Hampden   Sydney    College,  5 

Munf.(Va.)324. 


320  PUBLIC   SCHOOL   LAW. 

and  the  state  treasurer,  are  all  properly  joined  as  defend- 
ants. .  .  . 

"The  constitutional  system  of  common  schools  must  extend 
throughout  the  state,  and  must  afford  equal  benefit  to  all  the 
children  thereof  within  the  specified  years.  The  general  as- 
sembly is  without  authority  to  establish  a  system  of  common 
schools  which  does  not  possess,  in  its  entirety,  these  distin- 
guishing features.  It  is  more  than  a  presumption,  that  the 
term  public  schools  was  employed  in  the  constitution  in  its 
popular  meaning  and  sense,  the  system  of  public  schools  to 
which  the  people  of  the  state  had  been  accustomed,  and  as  they 
would  understand  it,  in  adopting  the  constitution.  As  we  have 
said  in  another  case,  the  system  of  public  schools  commanded 
to  be  established,  organized,  and  maintained,  was  intended  to 
operate  upon,  and  in  favor  of  all  the  children  equally,  with- 
out special  local  privileges  to  any.  (Schultes  v.  Elerly,  82 
Ala.  242.)  .  .  . 

"The  act  in  question  not  only  does  not  purport,  but  negatives 
the  idea,  that  the  university  thereby  established  should  consti- 
tute a  part  of  the  system  of  common  schools.  It  establishes  a 
university,  with  the  implied  privileges  and  powers  appertaining 
to  such  institutions  of  learning,  and  as  contradistinguished  from 
high  schools,  and  even  colleges.  It  is  not  subject  to  the  super- 
vision of  the  superintendent  of  education,  in  whom  the  constitu- 
tion vests  the  supervision  of  the  public  schools.  It  provides  for 
the  appointment  of  trustees,  who  are  empowered  to  elect  a 
faculty,  and  such  officers  and  agents  as  they  may  deem  neces- 
sary ;  to  discharge  any  member  of  the  faculty  or  officer  or  agent, 
at  their  pleasure ;  to  prescribe  their  duties,  and  fix  their  com- 
pensation ;  and  generally,  to  govern  and  control  the  faculty  and 


UNIVERSITIES,  COLLEGES,  ETC.  321 

the  university,  4so  that  the  students  therein  may  be  taught  in  the 
best  manner  possible  the  things  they  are  to  live  by,  preferring 
always  the  English  language  and  the  industries,  to  an  education 
for  culture  only.'  The  act  authorizes  the  trustees,  in  the  event 
QO  suitable  lands  or  buildings  are  given  for  the  location  of  the 
university,  to  buy  not  exceeding  forty  acres  of  land,  and  for  the 
purpose  of  buying  the  land  and  erecting  suitable  buildings 
thereon,  appropriates  the  sum  of  ten  thousand  dollars,  payable 
on  the  order  of  the  governor,  in  amounts  and  at  times  specified  ; 
and  also  appropriates  for  the  support  and  maintenance  of  the 
university  the  sum  of  seven  thousand  and  five  hundred  dollars 
annually,  to  be  paid  to  the  treasurer  in  equal  installments,  on 
the  first  days  of  January,  April,  and  October  of  every  year ; 
and  further  provides  that  these  several  sums  so  appropriated 
shall  be  'set  apart  and  appropriated  from  the  school  fund  for 
the  education  of  the  colored  race.'  .  .  . 

"Having  reached  the  conclusion  that  the  university  is  not  a 
public  school  in  the  meaning  of  §  1  of  art.  13  of  the  constitu- 
tion, and  as  the  appropriations  for  its  -establishment  are  ex- 
pressly set  apart  and  appropriated  from  the  school  fund  for  the 
colored  race,  we  are  forced  to  hold  that  the  seventh  and  tenth 
sections  of  the  act  are  unconstitutional ;  and  as  what  remains  is- 
incapable  of  full  execution  according  to  the  legislative  intent,, 
the  entire  act  falls." 

§  290.  Universities,  colleges,  etc. — In  the  case  of  State 
v.  Bdbcock,  17  Neb.  612,  it  was  held:  "The  question  as  to  their 
power  over  the  university  funds  was  before  this  court  in  Regents 
v.  Me  Connelly  5  Neb.  423.  In  that  case  they  brought  an  action 
against  McConnell  to  recover  the  'sum  of  about  $3,500,  moneys 
belonging  to  the  regents'  fund,  which  came  into  the  hands  of 
—21 


322  PUBLIC   SCHOOL   LAW. 

the  defendant  as  treasurer  of  the  university,  under  his  appoint- 
ment by  the  regency.'  The  opinion  was  written  by  Chief  Justice 
Gnatt,  who  said  (page  428):  'Under  the  act  of  1869  the  uni- 
versity corporation  had  no  control  over  or  disposition  of  the 
endowment  fund,  and  now  by  the  act  of  February  25,  1875,  the 
legislature  has  deemed  it  proper  to  abolish  the  office  of  treasurer 
of  the  university,  and  to  make  the  state  treasurer  the  custodian 
of  the  funds  appropriated  for  the  support  and  maintenance  of 
the  university,  to  be  disbursed  by  him  upon  warrants  drawn  by 
the  state  auditor,  in  the  same  manner  as  funds  appropriated  for 
the  support  of  other  state  institutions  not  incorporated  are  dis- 
bursed. Hence,  by  this  latter  act,  the  custody  and  control  of 
these  funds  are  taken  from  the  corporation  and  placed  in  the 
custody  of  the  state  treasurer  for  disbursement,  and  under  the 
settled  rule  of  law,  in  respect  to  public  corporations  of  this  kind, 
the  legislature  had  the  undoubted  authority  to  take  these  funds 
from  the  custody  of  the  corporation  and  divest  it  of  any  cor- 
porate power  over  them ;  and  having  done  so,  we  think  it  clear 
that  the  regents  as  such  corporation  have  no  authority  in  law  to 
bring  or  maintain  this  action.'  The  same  question  was  again 
before  the  court  in  State  v.  Liedtke,  9  Neb.  468,  the  opinion 
being  written  by  the  present  chief  justice,  and  it  was  held  in 
effect  that  without  an  appropriation  by  the  legislature  c  no  such 
funds  or  any  other  funds  once  in  the  state  treasury  can  be 
drawn  out,'  and  because  there  was  no  appropriation  from  the 
regents'  fund,  the  court  refused  to  compel  the  auditor  to  draw  a 
warrant  thereon." 

§  291.  Universities,  colleges,  etc. — In  the  case  of  Ligget 
et  al.  v.  Ladd  et  al.,  (Ore.)  21  Pac.  Rep.  133,  it  was  held:  "A 
college  was  incorporated  under  articles,  one  of  which  stated  its 


VOTERS.  323 


object  to  be  'to  acquire  and  hold  property  in  trust  for  the 

church,  and  to  endow,  build  up  and  maintain  an  institution  for 
educational  purposes,  and  to  confer  .  .  .  degrees,  etc., 
usual  in  colleges,'  to  be  controlled  by  the  trustees  and  their 
successors,  who  were  to  be  chosen  by  the  church :  'Provided, 
That  said  college  shall  be  a  strictly  literary  institution.'  An 
act  of  the  legislature  gave  certain  privileges  to  the  college,  on 
the  condition  of  its  teaching  agriculture.  The  college  accepted 
the  proposition,  thus  virtually  becoming  the  agricultural  college 
of  the  state.  Land  was  conveyed  to  the  college,  'to  be  used 
by  said  college  as  an  agricultural  farm  in  connection  and  for 
the  purpose  of  the  agricultural  college,'  with  a  conditional  limi- 
tation over  in  case  the  premises  should  cease  to  be  used  for 
that  purpose.  Held,  that  under  its  charter  the  college  had  the 
power  to  take  and  hold  land  for  collegiate  purposes  entirely 
independent  of  any  benefit  to  the  church,  and  therefore  the 
church  had  no  interest  whatever  in  the  land  mentioned,  which 
the  trustees  had  full  power,  so  far  as  the  church  was  concerned, 
to  convey  to  the  regents  of  the  agricultural  college." 

§  292.  Vaccination,  constitution. — "An  act  to  encourage 
and  provide  for  a  general  vaccination  in  the  state  of  California," 
is  constitutional,  although  the  title  refers  to  "general"  and 
body  of  act  to  scholars  of  public  schools.1 

§  293.  Voters. — In  Kas.  a  woman  may  vote  for  school-dis- 
trict treasurer,2  but  cannot  vote  for  state  superintendent  or  county 
superintendent.3  In  N.  J.  aliens  have  no  right  to  vote  at  a 
meeting  of  district,  to  alter  the  district,  pursuant  to  law  of  1851.* 
In  N.  Y.  where  a  charge  for  teacher's  wages  in  a  district,  for 
the  teaching  of  a  son,  was  included  in  the  rate-bill  against  father, 


lAbeel  v.  Clark,  84  Cal.  226.  I    *Winans  v.  Williams,  5  Kas.  227. 

|    *  State  v.  Deshler,  25  N.  J.  L.  ( 1  Dutch.)  177. 


2  Wheeler  v.  Brady,  15  Kas.  26. 


324 


PUBLIC   SCHOOL   LAW. 


and  paid  by  son,  a  resident  of  the  district,  and  authorized  to 
vote  at  town  meetings  of  the  town  in  which  such  district  was 
situated,  such  payment  qualified  the  son  to  vote  at  the  district 
meetings.1  In  Yt.  it  is  not  a  necessary  qualification  of  a  voter 
or  office-holder  in  a  town  or  school  district,  that  he  be  a  free- 
man.2 A  widow  cannot  vote  at  meeting  in  Yt.  where  her 
property  was  listed  to  the  estate  of  husband.  (K.  L.,  §  2644.)3 
Where  fraudulent  voting  is  charged  at  a  district  meeting,  and 
new  vote  is  taken,  and  different  result  declared  by  the  chair- 
man, the  last  will  be  sustained/ 

§  294.  Warrants. — In  Ind.  a  school  commissioner  is  not 
authorized  to  pay  interest  collected  by  him  on  money  of  a  con- 
gressional township,  except  on  a  draft  of  the  township  trustees  ;5 
and  if  he  has  paid  the  money  to  a  person  not  authorized  to  re- 
ceive it,  still,  if  he  is  ready  to  pay  the  trustees'  draft  when  pre- 
sented, his  duty  will  be  discharged.5  Payments  for  repairs  on 
school -house  by  district  officers  are  presumed  to  have  been 
authorized  by  the  district.6  A  township  treasurer  cannot  pay  a 
warrant  in  excess  of  the  funds  in  his  hands  due  that  township 
and  be  allowed  a  credit  for  the  excess  out  of  the  funds  belong- 
ing to  any  other  township.7  A  county  treasurer  may  refuse  to 
honor  warrants  given  by  officials  for  salaries  when  there  is 
want  of  authority  to  issue  the  warrants.8  In  N.  J.  the  town- 
ship collector  is  not  responsible  for  the  application  of  the 
money  paid  out  on  proper  orders  ;9  but  where  officers  contract 
for  book,  signing  and  receipting  for  the  same  personally,  they 
are  individually  liable  although  they  issued  a  warrant  for  pay- 
ment.10 Where  sub-contractor  obtains  an  order  from  the  district 


i  Crawford  v.  Wilson,  4  Barb.  (N.  Y.)  504. 
*Woodcock  v.  Bolster,  35  Vt.  632. 
»Sch  Dist.  v.  Town,  22  A.  570. 
*State  v.  Hatching,  (Neb.)  50  N.  W.  165. 
'State  v.  Wright,  8  Blackf.  (Ind.)  65. 


« Brock  v.  Bruce,  (  Vt.)  10  A.  93. 
'State  v.  Cook,  72  Mo.  496. 
8  State  v.  Bateman,  96  N.  C.  5. 
» Zimmerman  v.  Mathe,  (N.  J.)  7  A.  674. 
1°  Western  P.  v.  Bachman  S.  D.,  51  N.  W.  214. 


WARRANT.  325 


after  contractor  abandons  the  work,  and  sues  on  such  order,  he 
can  show  that  more  than  that  amount  was  due  the  contractor 
from  the  district  at  the  time  of  giving  the  order.1  In  Kas.  it 
is  the  duty  of  a  director  of  a  school  district  to  sign  the  orders 
when  presented  to  him  for  his  signature.  He  has  no  discretion 
in  the  matter,  and  may  be  compelled  to  sign  a  proper  warrant 
for  a  teacher  by  mandamus.2 

§295.  Warrant. — A  school  order  was  issued  to  a  teacher 
in  a  sub-district;  before  its  payment  the  several  sub-districts 
of  the  township  were  organized  into  independent  districts ;  an 
action  could  not  lie  against  the  independent  district,3  but  recov- 
ery could  be  had  thereon  of  all  the  independent  districts  united, 
and  they  should  apportion  their  liabilities.3  Under  Iowa  stat- 
ute, an  action  can  be  maintained  against  a  school  district  upon 
proper  order  on  its  treasurer ;  and  the  payee  is  not  restricted 
to  mandamus  as  his  sole  remedy.*  A  complaint  on  a  warrant 
for  apparatus  need  not  anticipate  the  defense.5  The  act  author- 
izing board  of  trustees  University  of  California  to  draw  money 
does  not  require  an  appropriation  or  a  controller's  warrant; 
they  draw  money  on  their  warrant  indorsed  by  the  governor.6 
School-district  orders  drawn  by  the  officer  and  accepted  by  the 
treasurer,  and  indorsed  "Not  paid,  for  want  of  funds,"  are  sub- 
ject to  the  same  defense  against  an  indorsee  as  against  the 
payee.7  The  assignee  of  an  order  issued  in  excess  of  the  con- 
stitutional limitation  is  in  no  better  position  than  the  assignor.8 
A  school  township  may  execute  a  valid  promissory  note  for  any 
debt  contracted  for  the  benefit  of  its  property;  an  assignee 

6  Jefferson   School   Tp.  v.  Litton,   116  Ind, 

4(57. 

6  Gal.  Uni.  v.  January,  66  Cal.  507. 
*  Sch.  Dist  v.  Stough,  4  Neb.  357. 
s  Nat  St  Bk.  of  Alt.  Pleasant  y.  Ind.  Sch 

Dist.,  39  Iowa,  490. 


ebre  v.  Bd.  Ed.  Superior,  (Wis.)  51  N. 

W.  952. 

«Fauik  v.  McCarthy,  42  Kas.  695. 
SRiioxville  National  Bank  v.  Washington,  40 

Iowa,  612. 
*  Cross  v.  Dayton,  154  Iowa,  28. 


326 


PUBLIC   SCHOOL   LAW. 


takes  it  subject  to  all  defenses.1  A  school  order  carries  notice 
to  every  person  becoming  its  holder  of  its  validity,  and  he  must 
at  his  peril  ascertain  what  defenses  can  be  interposed.2  Where 
a  school-district  board  contracted  for  a  school-house,  and  issued 
orders  before  any  work  was  done,  never  having  been  author- 
ized by  a  vote,  and  the  house  was  not  erected,  the  district  was 
not  liable  to  an  indorsee.8 

§  296.  Warrants.  —  Payment  by  treasurer  of  school  district 
of  orders  drawn  by  teacher,  held  to  be  good  offset  in  a  suit  on 
school  warrant  to  teacher,  assigned  to  C.,  who  had  notice.* 
Where  duplicate  warrants  are  issued  for  those  lost,  the  statute 
of  limitation  will  run  from  date  of  original  and  not  of  issue  of 
duplicates.5  A  warrant  issued  to  settle  dispute  over  contract 
for  school-house  ground  is  not  without  consideration  though  the 
ground  has  been  conveyed  to  others  by  payee,  if  the  district  is 
in  peaceable  possession.*  Warrant  is  not  binding  on  district, 
because  never  properly  allowed,  never  executed  at  any  regular 
meeting,  and  only  allowed  by  one  legal  member  of  the  board.7 
In  111.  the  board  of  school  directors  had  no  power  to  make 
acceptances  of  orders  or  bills  of  exchange,  so  as  to  bind  the 
school  district  and  create  a  right  of  action  thereon  against  them.8 
A  township  trustee  has  no  power  to  borrow  money  for  the 
school  township  ;  but  for  money  borrowed  and  actually  used  in 
a  legitimate  way,  the  township  may  be  held  liable.9  Orders  on 
the  treasurer  of  a  school  district,  directing  him  to  pay  certain 
judgments,  issued  under  Code  Iowa,  §  1787,  are  not  evidences 
of  debt  independent  of  the  judgments  on  which  they  are  based  ; 


i  Sheffield  Sch.  Tp.  v.  Andrese,  56  Ind.  157. 
'Newell  v.  Sch.  Dirs.,  68  111.  514;  Cap.  Bk.  v. 

Sch.  Dist.,  (N.  D.)  48  N.  W.  363. 
'Sch.  Dist.  v.  Stough,  4  Neb.  357. 
«Sch.  Dist.  v.  Collins,  16  Kas.  406. 
*  Sch.  Dist  v.  Cromer,  52  Ark.  454. 


FP-,  7 

i  Mincer  v.  Sch.  Dist.,  27  Kas.  253. 
"Peers  v.  Bd.  Ed.,  72  111.  508. 
9CrawfordsvilIe  Bank  v.  Union,  75  Ind. 
Wallis  v.  Johnson,  75  Ind.  368. 


WARRANTS. 


327 


and  a  demurrer  to  a  petition  by  an  assignee,  in  which  it  is  not 
averred  that  the  judgments  have  been  paid  or  canceled,  on  the 
ground  that  it  fails  to  state  a  cause  of  action,  must  be  sustained.1 
In  Neb.  the  orders  on  the  school-district  treasurer  must  be 
signed  by  the  director  and  countersigned  by  the  moderator  ;2 
and  a  warrant  must  specify  the  fund  out  of  which  it  is  to  be 
paid  or  it  may  be  disregarded  by  the  treasurer.3  The  provision 
of  the  111.  statute,  that  all  orders  drawn  upon  the  school  fund 
must  express  the  purpose  for  which  they  are  drawn,  is  manda- 
tory, and,  if  invalid,  .they  cannot  be  rendered  valid  by  any  suc- 
ceeding board  paying  interest.* 

§297.  Warrants.  —  Warrant  payable  immediately,  issued 
in  excess  of  amount  authorized  by  statute,  is  invalid ;  and  the 
district  may  plead  ultra  vires;5  but  where  warrants  were  issued 
in  excess  of  the  limit  for  that  year,  but  not  in  excess  of  what 
would  be  the  limit  for  two  annual  issues,  for  purchasing  a  site 
and  building  and  supplies,  an  acceptance,  use  and  ratification 
by  the  district  and  approval  of  disbursement  after  the  two  years 
had  elapsed,  will  bind  the  district  ;6  but  a  district  was  held  liable 
for  orders  issued  for  money  to  pay  for  building  a  house  to  the 
extent  of  debt  incurred  before  the  limit  was  reached.7  In  Tex., 
where  claim  is  allowed  by  county  commissioners'  court,  but  no 
record  made,  a  mandamus  will  lie  to  compel  issue  of  warrant, 
though  the  commissioners  subsequently  and  without  notice  order 
that  no  warrants  shall  issue,  for  lack  of  funds.8  Mandamus  lies 
to  compel  a  school  district  to  pay  orders  issued  by  it,  even 
though  the  district  has  since  been  subdivided.9  Interest  upon 
such  orders  was  denied,  there  being  no  authority  given  to  im- 


1  Richards  v.  Ind.  Sch.  Dist.  of  Kock  Rapids, 

46  F.  460. 

2  State  v.  Bloom,  19  Neb.  562. 
s  State  v.  Slavin,  11  Wis.  158. 
*Gilidden  v.  Hopkins,  47  111.  525. 


6 Farmers  etc.  Bank  v.  Sch.  Dist.,  6  Dak.  255. 
8 Capital  Bank  v.  Sch.  Dist.,  6  Dak.  248. 
7  Austin  v.  Dist.  Tp.,  51  Iowa,  102. 
8 Brown  v.  Reese,  (Tex.)  7  S.  W.  489. 
9Turnbull  v.  Alpena  Bd.  Ed.,  45  Mich.  496. 


328 


PUBLIC   SCHOOL   LAW. 


pose  it.1  When  a  warrant  is  drawn  by  those  who  are  de  facto 
directors  of  the  public  schools  of  a  particular  district,  the  treas- 
urer cannot  claim  that  the  directors  were  not  elected  and  had 
not  qualified  ;2  but  warrant  made  by  two,  as  members  of  board, 
not  binding,  for  one  was  not  member  either  de  jure  or  de  facto, 
and  it  was  not  executed  in  pursuance  of  any  order  made  at 
proper  meeting.3  A  board  of  education  acting  separately  can- 
not contract  a  debt  or  direct  the  issuance  of  an  order  to  pay  it.* 
The  power  must  be  executed  in  person  by  each  and  all  ;5  but  the 
record  showing  authority  to  issue  warrant  cannot  be  impeached 
by  showing  that  no  action  was  had  at  that  meeting,  or  that 
entry  was  in  handwriting  of  party  interested,  who  was  not  a 
secretary,  and  that  he  signed  the  director's  name.6  School-dis- 
trict order  is  prima  facie  valid.7  Warrants  for  past  years  can- 
not be  paid  out  of  fund  specifically  raised  to  carry  on  school  for 
current  year.8  A  petition  on  order  issued  by  town  in  Wis., 
that  is  a  school  district,  need  not  state  that  there  is  money  in 
the  fund  to  pay  the  same,  the  order  being  on  the  general  school 
fund  in  town  treasurer's  hands.9  A  petition  on  warrants  issued 
by  directors  of  school  district  which  has  been  attached  to  district 
of  defendant  is  defective  unless  it  shows  liability  by  reason  of 
apportionment  of  funds.10  Directors  in  111.  may  give  a  warrant 
on  their  treasurer  for  money  borrowed  for  school  purposes.11 
Interest  at  6  per  cent,  is  recoverable  on  an  Iowa  school  board 
order.18 

§  298.    Women  officers. — In  Minn,  a  woman  can  hold  the 
office  of  county  superintendent ;  this  eligibility  is  conferred  by 


iTnrnbull  v.  Alpena  Bd.  Ed.,  45  Mich.  496. 

SMiahle  v.  Fournet,  13  La.  Ann.  607. 

s Mincer  v.  Sen.  Dist.,  27  Kas.  253. 

< State  v.  Treas.  Liberty  Tp.,  2^  Ohio  St.  144. 

6(4ilidden  v.  Hopkins,  47  III.  525. 

«Ev.-rt8  v.  Dist.  Tp.,  77  Iowa,  37. 

7  Sch.  Dist.  v.  Swayze,  29  Kas.  211. 


8Foote  v.  Brown,  60  Miss.  155. 

»Brown  v.  Tn.  Bd.  Sch.  Dist,  (Wis.)  45  N. 

W.  678. 

i°Moll  v.  Sch.  Diet.,  23  111.  App.  508. 
"Folson  v.  Sch.  Dist.,  91  111.  4<J2. 
12  Austin  v.  Dist.  Tp.,  51  Iowa,  102. 


WOMEN   VOTERS. 


329 


the  constitution.1  Women  are  eligible  to  office  of  county  super- 
intendent of  public  instruction  in  Kansas.2  In  Mass,  there  is 
nothing  in  the  constitution  which  prevents  a  woman  from  being 
a  member  of  the  school  committee.3  Mass.  Stat.  of  1874,  ch. 
389,  made  women  eligible  on  the  Boston  school  committee. 
Under  the  charter  of  Boston,  (Stat.  of  1854,)  the  city  school 
committee  is  the  judge  of  the  qualifications  of  its  members ;  its 
decision  that  a  seat  is  vacant  for  want  of  a  legal  election  and 
qualification  is  conclusive,  although  the  sole  reason  for  the  de- 
cision is  that  the  petitioner  is  a  woman.4  Where  a  majority  of 
the  board,  not  counting  the  female  members,  voted  in  favor  of 
changing  a  boundary,  the  constitutionality  of  the  act  making 
women  eligible  to  office  will  not  be  passed  upon.5 

§  299.  Women  voters. — Art.  2,  §  23,  of  the  Kas.  constitu- 
tion, which  provides  that  "The  legislature,  in  providing  for  the 
formation  and  regulation  of  schools,  shall  make  no  distinction 
between  the  rights  of  males  and  females,"  does  not  confer  upon 
females  the  right  to  vote  for  school  officers.6  The  111.  act  1891, 
authorizing  women  to  vote  for  superintendent  of  schools,  is  un- 
constitutional in  that  regard.7  "In  Minn,  the  county  superin- 
tendent's office  pertains  solely  to  the  management  of  schools 
within  art.  7,  §  8,  of  constitution.  Sec.  8  takes  matter  of  allow- 
ing women  to  vote  for  offices  out  from  under  art.  7,  and  leaves 
it  to  the  legislature,  subject  only  to  restrictions  in  §  8,  and 
under  this  the  legislature  may  make  women  eligible  to  a  school 
office."8 


1  State  v.  Gorton,  33  Minn.  345. 
*  Wright  v.  Noell,  16  Kas.  601. 
'Opinion  of  Justices,  115  Mass.  602. 
<Peabody  v.  Sen.  Comm.,  115  Mass.  383. 


CDonough  v.  HolMster,  82  Mich.  309. 

•  Winans  v.  Williams,  5  Kas.  227. 

7 People  v.  English,  (111.  Sup.)  29  N.  E.  678. 

8  State  v.  Gorton,  33  Minn.  345. 


APPENDIX. 


SYNOPSES   OF   SCHOOL   LAWS. 


ALABAMA. 
(Compiled  by  Hon.  JOHN  G.  HARRIS,  State  Superintendent.) 

System:  Superintendent  of  education,  county  superintend- 
ent, township  trustees,  county  educational  board. — State  Su- 
perintendent of  Education  shall  have  general  supervision ; 
may  require  reports  from  county  school  officers ;  annually  visit 
each  county ;  encourage  education  and  teachers'  and  superin- 
tendents' institutes ;  make  provision  as  to  instruction  on  effects 
of  alcohol  and  narcotics ;  annually  apportion  and  distribute 
funds,  prepare  forms  and  blanks,  furnish  county  school  officers 
necessary  books;  keep  an  accurate  account  of  state  school 
funds  ;  preserve  bonds  of  school  officers ;  institute  suits  against 
defaulters ;  may  employ  attorneys  where  required ;  supervise 
the  collection  of  poll-tax ;  exchange  reports  with  other  states ; 
may  collect  books,  maps,  apparatus,  charts,  and  specimens  with- 
out expense  ;  compile  the  laws ;  provide  for  teachers'  institutes ; 
make  report. — County  Superintendent,  one  in  each  county ; 
term  two  years.  The  county  superintendent  may  be  removed 
by  state  superintendent  for  cause ;  shall  take  oath ;  give  bond ; 
compensation,  $75  per  annum  and  two  per  cent,  on  funds  dis- 
tributed— varies  in  some  counties.  County  superintendent  must 
have  office  at  county  seat,  and  be  present  on  the  first  Saturday 
of  each  month  of  school  year;  take  charge  of  school  funds  in 
his  county ;  apportion,  distribute  and  pay  out  money ;  examine 
into  school  funds  of  his  county,  and  lands  unsold;  may  bring 

(331) 


332  SYNOPSES   OF   SCHOOL   LAWS. 

suit  for  the  use  of  township,  to  recover  lands,  or  against  tres- 
passers ;  make  annual  report  before  the  1st  of  November ;  post 
at  the  court-house,  semi-annually,  an  itemized  statement  of  his 
accounts ;  may  remove  township  trustee  for  cause ;  fill  vacan- 
cies ;  must  pay  teachers  quarterly ;  must  report  to  probate 
judge.  Commissioner's  court  audits  his  accounts.  County  su- 
perintendent, failing  to  make  annual  report,  is  liable  to  forfeiture 
of  pay  and  office.  Superintendent  of  education  fills  the  vacancy 
by  appointment.  Three  township  trustees  for  each  township  or 
school  district  are  appointed  by  the  county  superintendent,  sub- 
ject to  the  approval  of  the  state  superintendent;  and  in  lieu  of 
township  superintendent,  county  superintendent  appoints  three 
Township  Trustees.  (They  are  elected  in  some  counties.) 
Township  trustees  have  the  supervision  of  the  public  schools  of 
their  township,  and  have  the  power  to  establish,  subject  to  the 
approval  of  the  county  superintendent,  such  schools  as  may  be 
required.  The  trustees  shall  annually,  on  the  last  Monday  of 
October  or  within  seven  days  thereafter,  call  a  meeting  of  the 
parents  and  guardians  of  the  children  of  their  district  to  transact 
business,  and  then  determine  the  number  of  schools  to  be  estab- 
lished in  the  district,  locate  the  same,  fix  the  time,  apportion  the 
revenue,  transfer  children,  and  such  other  business  as  may  be 
necessary ;  make  a  report  in  ten  days ;  ten  days'  notice  of  the 
meeting  must  be  given.  Appeal  may  be  had  to  county  super- 
intendent from  action  of  the  meeting.  Contracts  with  teachers 
by  the  trustees  shall  be  in  writing,  and  must  be  approved  by  the 
county  superintendent.  They  shall  visit  schools  once  a  year ; 
may  remove  teacher  for  cause. — Teachers :  Three  grades  cer- 
tificates, each  of  which  shows  the  branches  in  which  the  holder 
has  been  examined  and  his  relative  attainments  therein.  No 
certificate  shall  be  granted  where  applicant  fails  on  70  per  cent. 
of  the  questions ;  third-grade  certificate,  one  year ;  second  grade, 
two  years ;  first  grade,  three  years  in  the  county. — Educational 
Board  in  the  county :  County  superintendent  and  two  teachers ; 


ARIZONA.  333 


examine  and  license  teachers.     There  are  other  acts  for  local 
schools  governed  by  local  statutes. 

ARIZONA. 
(Compiled  by  Hon.  GEO.  W.  CHEYNEY,  Superintendent  of  Public  Instruction.) 

System:  Territorial  board  education,  superintendent  public 
instruction,  territorial  board  examiners,  county  school  superin- 
tendent, county  board  examiners,  districts,  trustees,  census 
marshal,  clerk  school  district. — District  formed  on  petition  of 
parents  or  guardians  of  ten  school  census  children  to  county 
superintendent ;  one  week's  notice  to  be  given,  posted  at  three 
public  places,  one  at  the  school-house  door.  County  superin- 
tendent must  transmit  petition  to  board  of  supervisors  with 
approval  or  disapproval,  and  it  acts  upon  the  same.  One  "of 
three  trustees  elected  in  school  district  last  Saturday  of  June  in 
each  year. — Meetings  of  district  direct  by  vote  the  location,, 
change,  purchase  and  sale  of  site,  erection  of  buildings,  attend- 
ing to  suits. — Trustees  have  power  to  prescribe  and  enforce 
rules ;  control  property ;  to  purchase  furniture,  apparatus  and 
supplies;  rent,  furnish  and  repair,  and  insure  property;  to- 
build,  purchase  or  sell  school-houses  when  directed  by  vote ;  to 
make  conveyances;  to  employ  teachers  and  employes  —  no 
contract  to  extend  beyond  30th  of  June  next  ensuing ;  to  expel 
pupils  for  misconduct ;  to  exclude  children  under  six  years  old ; 
to  enforce  study  and  text-books  prescribed ;  to  appoint  librari- 
ans; to  exclude  immoral  publications;  to  provide  for  non-resi- 
dent pupils;  and  visit.  —  Teachers:  Territorial  board  of 
examiners  grant  recommendations  for  life,  and  educational 
diploma;  grant  territorial  certificate  —  first  grade  four  years,, 
second  grade  three  years ;  revoke  certificates  for  cause,  and  re- 
new certificates.  County  board  examiners  grant  county  certifi- 
cates—  first  grade  four  years,  second  grade  two  years;  enforce 
text-books  prescribed,  and  revoke  for  cause  certificates  granted 
by  them,  and  grant  county  certificates  to  holders  of  life  diplo- 
mas and  normal-school  diplomas. — Text-Books  can  be  con- 


334  SYNOPSES   OF   SCHOOL   LAWS. 

tinned  in  use  four  years,  sixty  days'  notice  of  change  to  be 
given.  Publishers  must  give  good  bond.  Sectarian  books  or 
religious  exercises  may  cause  teacher's  certificate  to  be  revoked. 
Pupils  may  be  expelled  for  profanity,  vulgarity  and  injuring 
property.  —  Superintendent  of  Instruction  superintends 
schools ;  investigates  questions ;  apportions  funds ;  prescribes 
forms  and  certificates ;  appoints  county  board  examiners ; 
makes  reports,  and  has  general  supervision.  County  superin- 
tendent apportions  county  money ;  draws  warrants  by  order  of 
board  of  trustees  for  expenses;  presides  over  teachers'  insti- 
tutes ;  issues  (on  order  of  county  board)  temporary  certificates  ; 
appoints  trustees  in  case  of  vacancies ;  requires  building  to  be 
repaired ;  grades  the  schools ;  appoints  deputies ;  and  endeav- 
ors to  harmonize  boundaries.  Teachers'  institute  to  be  held 
once  in  a  year. 

ARKANSAS. 

System!  State  superintendent,  board  commissioners  of  com- 
mon-school fund,  school  districts,  county  examiners,  school  di- 
rectors. Cities  and  towns  may  be  special  districts.  —  State 
Superintendent  of  Public  Instruction  has  general  super- 
vision of  the  school  system  of  the  state ;  shall  keep  an  office 
and  record ;  shall  furnish  questions  for  examination  of  teachers 
to  county  examiner ;  shall  hold  a  teachers'  institute  annually  in 
each  judicial  district ;  prepare  blanks ;  supervise  funds ;  make 
report ;  make  apportionment ;  may  grant  state  certificates,  valid 
for  life  unless  revoked ;  shall  prepare  and  recommend  a  list  of 
text-books;  have  a  seal  of  office. — New  District  may  be 
formed  on  petition  to  the  county  court,  and  must  have  not  less 
than  thirty-five  school  children.  County  court  may  alter  district 
on  petition  ;  may  appoint  one  county  examiner  for  each  district. 
— Examiner  shall  examine  and  license  teachers ;  he  shall  hold 
quarterly  sessions  and  give  twenty  days'  notice.  He  may  revoke 
license  for  good  cause.  Shall  issue  three  grades  of  certificates : 
First  grade,  good  in  the  county  where  issued  two  years ;  second 
grade,  good  in  the  county  where  issued  one  year ;  third  grade, 


ARKANSAS.  335 


good  in  the  county  six  months.  He  shall  labor  to  promote  the 
cause  of  education  in  the  district ;  make  annual  report ;  number 
the  districts ;  may  designate  some  one  to  hold  teachers'  institutes 
and  examine  teachers  when  unable  to  attend.  County  judge 
may  remove  county  examiner  for  cause. — District:  Annual 
meeting,  third  Saturday  in  May,  at  2  p.  M.  ;  may  choose  a  chair- 
man ;  elect  director ;  designate  and  so  determine  the  time  when 
school  shall  be  had  more  than  three  months ;  determine  the 
amount  of  taxes,  not  to  exceed  one-half  of  one  per  cent. ;  re- 
peal or  modify  their  proceedings  from  time  to  time. — School 
Directors  hold  office  for  three  years.  When  a  new  district 
is  formed,  hold  office  for  one,  two  and  three  years,  respect- 
ively. Board  of  directors  have  care  of  the  school  property, 
may  purchase  or  lease  a  site,  designated  by  voters ;  hold,  pur- 
chase, or  build  school-house,  sell  or  exchange  school-house  when 
directed  by  vote.  They  shall  hire  licensed  teachers,  and  make 
a  written  contract.  Shall  adopt  one  series  of  text-books  for 
their  district,  and  no  change  shall  be  made  for  three  years. 
They  shall  visit  schools,  and  shall  attend  to  suits,  shall  draw  war- 
rants on  the  county  treasurer ;  give  notice  of  meeting  fifteen 
days,  and  notice  for  annual  meeting  to  fix  a  school-site,  or  build 
or  purchase  a  school-house,  and  must  state  these  facts  in  the 
notice.  Directors,  at  the  instance  of  the  teacher,  may  suspend 
a  pupil  for  gross  immorality,  refractory  conduct,  or  insubordina- 
tion, or  infectious  disease,  for  that  term.  County  court  may 
permit  non-residents  to  attend  in  districts.  Directors  and  county 
examiners  are  exempt  from  working  on  roads,  or  serving  on 
juries.  Persons  teaching  without  a  license  are  not  entitled  to 
compensation  from  state  revenues.  Teachers  must  attend 
teachers'  institutes.  No  sectarian  books  allowed. — State  Su- 
perintendent shall  hold  an  annual  teachers' institute;  has  the 
supervision  of  public  schools  ;  shall  prepare  examiner's  papers ; 
supervise  school  funds ;  make  annual  report  of  pupils  and 
money.  State  superintendent  and  county  examiner  shall  not 
be  interested  in  any  school  contract. 


336  SYNOPSES   OF   SCHOOL   LAWS. 

CALIFORNIA. 
(Compiled  by  Hon.  J.  W.  ANDERSON,  State  Superintendent.) 

Appeals  lie  from  disagreement  of  trustees  in  providing  for 
attendance  of  non-resident  children  in  district  school.  Appeals 
may  be  taken  from  dismissal  of  teacher  by  board  of  trustees,  and 
from  withholding  teacher's  salary. — New  Districts  formed  on 
petition  of  parents  or  guardians  of  fifteen  census  children  be- 
tween the  ages  of  five  and  seventeen  to  the  superintendent  of 
schools.  Notice  is  given  to  trustees  of  district  affected,  and 
posted  in  three  public  places,  one  on  school-house,  for  at  least  one 
week,  and  county  superintendent  must  transmit  the  petition  to 
board  of  supervisors,  with  his  approval  or  disapproval,  and  they 
act  upon  the  same. — District  Annual  Meeting  for  election  of 
trustees,  first  Tuesday  of  June  of  each  year ;  ten  days'  notice  to 
be  given.  Trustees  may  call  special  meeting  of  district  by  post- 
ing three  notices  in  public  places,  one  on  the  school-house,  for 
ten  days.  Notice  must  specify  the  purpose,  and  nothing  else 
can  be  transacted.  These  meetings  can  instruct  the  board  in 
regard  to  change  and  location  of  site,  in  regard  to  sale  or  pur- 
chase of  site,  in  regard  to  lawsuits  and  insurance. — Teachers' 
Certificates:  State  board  of  education  may  grant  educational 
diplomas  valid  for  six  years,  and  life  diplomas  ;  and  may  revoke 
diplomas.  State  educational  diplomas  may  be  issued  to  teachers 
who  have  held  a  first  grade,  grammar  grade,  high  school,  city  or 
county  grade,  or  city  and  county  certificate,  and  who  shall  have 
been  a  teacher  five  years.  Life  diplomas  are  issued  on  the  same 
conditions  to  persons  who  have  taught  ten  years.  County  su- 
perintendent may  issue  temporary  certificates  good  until  next 
meeting  of  county  board  of  education  to  persons  holding  certifi- 
cates, but  can  only  grant  a  temporary  certificate  to  such  person 
once.  County  board  of  education  may  grant  high-school  certifi- 
cates for  six  years,  grammar  certificates  for  three  years,  and  pri- 
mary for  two  years.  City  or  county  boards  of  examiners  may 
grant  high-school  certificates  for  six  years,  city  certificates  for 
three  years  and  city  certificates  for  two  years,  and  special  cer- 


COLORADO.  337 


tificates. — Trustees  of  district  boards  of  education  may  make 
rules  for  the  government  of  themselves  and  schools ;  may  con- 
trol school  property;  purchase  text-books  in  the  state,  school 
furniture,  organs  and  pianos,  and  apparatus.  Incorporated  cities 
having  board  of  education  and  trustees  of  districts  can  purchase 
only  such  books  and  apparatus  as  have  been  adopted  by  the 
county  or  city  board  of  education.  Trustees  may  rent,  furnish, 
repair  and  insure  school  property ;  when  directed  by  vote,  may 
build,  purchase  or  sell  lots ;  may  make  conveyances  ;  may  em- 
ploy teachers  and  employes,  and  fix  compensation ;  suspend  or 
expel  pupil  for  misconduct ;  exclude  children  under  six  years ; 
enforce  text-books,  and  course  of  study ;  appoint  librarian,  ex- 
clude sectarian  or  partisan  publications ;  furnish  books  to  those 
unable  to  buy ;  keep  a  register ;  appoint  a  school  census  mar- 
shal ;  and  visit.  Pupils  may  be  expelled  for  willful  disobedi- 
ence, open  defiance,  habitual  profanity  and  vulgarity,  and  for 
cutting,  defacing,  or  injuring  school  property. —  Certain  Text- 
books, published  by  state,  furnished  and  provided  for  school 
children  at  cost.  County  board  may  enforce  uniformity  of  text- 
books. County  board  may  grant,  without  examination,  county 
Certificates  to  the  holders  of  life  diplomas,  Cal.,  Nev.  and  Oreg., 
State  educational  diplomas,  Cal.  Normal  School  diplomas,  San 
Francisco  Normal  Class  diplomas,  Cal.  State  University  diplomas, 
State  Normal  School  diplomas  of  other  states,  high-school  and 
grammar-grade  certificates  of  any  county  or  city  in  Cal.,  and  may 
renew  certificates. —  State  Superintendent  superintends  all 
the  schools  of  the  state,  makes  report,  apportions  state  fund,  fur- 
nishes blanks,  visits,  and  may  convene  in  session  county  and  city 

superintendents. 

COLORADO. 
( Compiled  by  Hon.  NATHAN  B.  COY,  State  Superintendent.) 

New  Districts  are  organized  from  old  on  petition  of  par- 
ents of  ten  or  more  children  of  school  age,  to  county  superin- 
tendent, who  shall  give  notice  and  order  election.     A  district 
is   organized  from  unorganized   territory  without   petition    by 
—22 


338  SYNOPSES   OF   SCHOOL   LAWS. 

election  of  majority  of  legal  voters  of  the  district.  Over  1,000 
population,  first-class  district;  350,  second-class;  under,  third- 
class. — Annual  Meeting,  first  Monday  in  May,  at  which  elec- 
tion for  members  of  board  takes  place  and  any  lawful  business 
may  be  determined.  Notice  to  be  posted  at  three  public  places 
in  district,  at  least  six  days  previous  to  election,  one  on  school- 
house,  and  in  first-class  district  four  weeks  in  newspaper.  Two 
voters  may  give  notice  on  failure  of  secretary. — School  Boards 
may  employ  and  discharge  teachers,  fix  tuition  fee  of  non-resi- 
dent pupil,  fix  compensation  of  secretary,  fix  course  of  study 
and  text -book.  But  one  kind  of  text -book  is  to  be  used  in 
same  department  of  school,  and  after  adoption  no  change  in 
less  than  four  years  unless  price  unwarrantably  advanced,  or 
mechanical  quality  lowered,  or  supply  stopped.  They  may 
provide  for  supplies,  build,  remove,  rent,  repair,  and  insure 
school  -  house.  They  may  hold  property,  suspend  or  expel 
pupils  refusing  to  obey  rules,  determine  number  teachers,  fur- 
nish books  to  indigent  children,  exclude  immoral  books,  make 
annual  report.  No  high-school  building  is  to  be  built  without 
a  vote.  President  signs  all  orders  on  county  treasurer ;  none  to 
be  given  except  to  parties  to  whom  district  is  lawfully  indebted. 
Teacher  not  licensed  at  time  of  commencing  teaching  shall 
forfeit  all  claim  to  compensation  out  of  school  fund  for  that 
term. — Appeals  from  board  directors  in  thirty  days  to  county 
superintendent,  appeals  from  county  superintendent  in  thirty 
days  to  state  board  of  education ;  but  neither  can  render  judg- 
ment for  money.  Officer  interested  in  school  contracts  liable 
to  imprisonment  and  fine.  Teacher  who  is  graduate  of  state 
normal  may  teach  by  filing  in  county  superintendent's  office  a 
copy  of  his  diploma. — County  Superintendents  may  grant 
certificate :  first  grade  two  years,  second  grade  one  year,  third 
grade  six  months ;  and  he  may  revoke  for  just  cause. — State 
Superintendent  shall  decide  all  questions  touching  the  con- 
struction of  the  school  laws  submitted  in  writing,  and  this  de- 
cision is  final  until  set  aside  by  a  court  having  jurisdiction  or 


CONNECTICUT  — DELAWARE.  339 

by  legislature ;  and  may  give  his  decisions  through  an  educa- 
tional periodical.  He  shall  have  general  supervision  of  all  the 
county  superintendents  and  public  schools,  and  prepare  lists  of 
questions  for  examination  of  teachers. 

CONNECTICUT. 

System:  State  board,  towns,  school  visitors,  board  of  edu- 
cation, school  districts,  district  committee. — State  Board  may 
adopt  text-books,  not  to  be  changed  for  five  years ;  compulsory 
education  required.  Town  may  direct  school  visitors,  board  of 
education  or  school  committee  to  purchase  text-books  or  school 
supplies,  to  be  loaned  to  the  pupils  free  of  charge.  The  select- 
men control  the  school  property. — The  School  Visitors  pro- 
vide text-books,  subject  to  the  state  board  of  education,  examine 
teachers,  give  certificates,  and  may  revoke  certificates ;  the  effect 
of  alcohol  is  required  to  be  taught.  Board  of  education,  town 
committee,  and  board  of  school  visitors  may  appoint  the  super- 
intendent.— District  may  sue  and  be  sued ;  purchase  and  hold 
property ;  build,  purchase,  hire  and  repair  school-houses ;  fur 
nish  supplies ;  maintain  libraries,  employ  teachers,  levy  taxes. 
Non-resident  scholars  may  be  provided  for.  School-houses  may 
be  used  for  other  purposes,  by  vote  of  the  district  or  town. — 
District  Committee  give  notice  of  meetings ;  call  special 
meetings ;  may  direct  school  visitors  to  employ  teachers,  pro- 
vide room,  furnish  fuel,  visit  the  school ;  may  suspend  or  expel 
scholars,  and  assist  school  visitors. 

DELAWARE. 

State  superintendent's  and  assistant  superintendent's  offices 
have  been  abolished ;  and  in  lieu  a  County  Superintendent 
is  appointed  for  each  county  by  the  governor.  They  shall  be 
residents  of  the  county.  They  shall  visit  each  school  in  the 
county  twice  a  year,  examine  into  the  qualifications  of  teachers 
and  condition  of  schools,  advise  with  teachers,  suspend  or  with- 
draw teacher's  certificate  on  his  refusal  to  comply  with  reason- 


340  SYNOPSES   OF   SCHOOL   LAWS. 

able  directions,  subject  to  an  appeal.  The  county  superintendent 
shall  strive  to  promote  the  cause  of  education.  He  shall  exam- 
ine teachers  at  such  place  as  he  may  appoint.  First-grade  cer- 
tificate, good  for  three  years;  second  grade,  90  per  cent,  of 
answers  to  be  correct ;  third  grade,  from  90  to  60.  School 
commissioners  cannot  employ  a  teacher  who  does  not  hold  a 
certificate  from  the  superintendent  of  the  county.  Superintend- 
ent shall  make  annual  report  to  the  president  of  the  board  of 
education.  Secretary  of  state,  the  governor  of  the  state, 
and  three  superintendents  shall  constitute  the  State  Board 
Education.  They  shall  hear  appeals  and  finally  determine  all 
matters  between  a  superintendent  and  teacher  or  an  applicant 
for  a  certificate,  between  a  superintendent  and  commissioner, 
and  between  a  commissioner  and  teacher.  State  Board  of  Edu- 
cation shall  determine  what  Text-Books  are  to  be  used.  Each 
superintendent  shall  hold  teachers'  institute  in  county.  Super- 
intendent shall  collect  school  books  undisposed  of  and  dispose 
of  the  same  and  turn  the  proceeds  over  to  the  state  treasurer. 
Pupils  are  to  be  instructed  on  the  effect  of  alcohol  and  narcotics. 
Text-books  to  be  furnished  to  pupils  free.  School  commis- 
sioner or  trustees  shall  order  from  the  publisher  the  books  which 
have  been  adopted  by  the  state  board  of  education  on  contract 
prices.  State  treasurer  shall  pay  the  publisher  out  of  the  school 
fund.  Text-books  for  colored  schools  are  ordered  by  county 
superintendent.  County  superintendent  shall  have  the  entire 
management,  control,  and  supervision  of  the  colored  schools. 
Annual  school  meeting  is  to  be  held  on  the  last  Saturday  of 
June  of  each  year. 

FLORIDA. 

(Compiled  by  the  Hon.  ALBERT  J.  RUSSELL,  State  Superintendent  of  Public 

Instruction.) 

System:  State  board  of  education,  county  boards  of  public 
instruction,  county  superintendents,  treasurer,  and  school  super- 
visors.— County  Boards  of  public  instruction  for  county  ap- 
pointed by  state  board  of  education  on  the  nomination  of  the 


GEORGIA.  341 


state  superintendent. — Supervisors  appointed  by  county  boards 
of  public  instruction.  Each  county  is  a  district. — The  County 
Superintendent  is  elected  by  the  people  every  four  years. — 
The  County  Boards  of  public  instruction  hold  titles,  locate  and 
maintain  schools,  appoint  supervisors  and  teachers,  provide  sites, 
examine  teachers,  grant  certificates  of  the  second  and  third  class, 
fix  the  compensation  of  the  county  superintendent,  purchase  and 
rent  sites,  furnish  apparatus  and  supplies,  and  select  text-books. 
—Supervisors  take  charge  of  school  property,  attend  to  in- 
struction, rent  and  repair  school  buildings,  fence,  fencing  sup- 
plies, text-books;  may  suspend  or  expel  pupils. — Teachers' 
certificates  from  the  county  boards  of  public  instruction,  good 
in  county  where  issued  for  one  year.  The  state  superintendent 
of  public  instruction  may  grant  certificates  to  graduates  of  de- 
partments of  teaching,  good  in  any  part  of  the  state  during  the 
time  given ;  there  are  three  grades  of  certificates. — Teachers 
may  enforce  proper  regulations;  suspend  pupils  ten  days  for 
cause,  giving  notice  to  the  trustees  and  parents.  Bible  not  pro- 
hibited. Disputes  are  to  be  settled  by  arbitration.  Appeals 
may  be  made  from  one  officer  to  the  next  superior.  Decisions 
of  the  state  superintendent  of  public  instruction  and  state  board 
of  education  are  final. 

GEORGIA. 
(Compiled  by  Hon.  S.  D.  BEAD  WELL,  State  Superintendent.) 

System:  State  board  of  education,  state  school  commis- 
sioner, county  school  commissioner,  county  board  education, 
school  trustees.  —  Sub-Districts  created  by  county  board. 
Trustees  for  sub-school  districts  to  be  appointed  by  county 
board. — County  Board  has  power  to  purchase,  sell  or  rent 
school-site ;  to  buy,  build,  repair  or  rent  school-house ;  to  pur- 
chase supplies ;  have  care  of  property ;  may  provide  separate 
schools  for  white  and  colored  races ;  determine  controversies, 
appeal  being  given  to  state  school  commissioner  from  county 
commissioner.  County  board  appoints  county  commissioner. 
County  board  prescribes  text-books ;  Bible  shall  not  be  excluded  ; 


342  SYNOPSES   OF   SCHOOL   LAWS. 

text-books  not  to  be  changed  for  five  years  except  by  three- 
fourths  vote  of  the  board ;  sectarian  text-books  shall  not  be 
used ;  no  teacher  shall  receive  pay  from  pupil. — Teacher : 
County  board  grants  license  —  first  grade  three  years,  second 
grade  two  years,  third  grade  one  year.  State  commissioner 
may  grant  permanent  license.  County  commissioner  may  re- 
voke license  for  cause ;  right  of  appeal  to  the  county  board  is 
given.  County  commissioner  shall  visit  schools,  keep  records, 
audit  accounts,  exercise  general  supervision,  and  is  purchasing 
agent.  School  property  is  exempt  from  taxes,  not  to  exceed 
four  acres.  Teacher  must  have  license  at  time  of  contract,  to 
enable  him  to  draw  pay.  Private  term  may  be  contracted  by 
teachers  and  patrons,  and  must  be  approved  by  board  education. 

IDAHO. 
(Compiled  by  HON.  J.  E.  HARBOUN,  State  Superintendent.) 

System :  State  board  public  instruction,  state  superintendent, 
county  superintendent,  districts,  trustees,  independent  school  dis- 
tricts.— Districts  formed  on  petition  of  parents  or  guardians  of 
ten  children  to  county  superintendent.  Notice  to  be  posted  in 
three  public  places.  District  established  on  vote  of  two-thirds 
voting.  Joint  district  formed  from  land  in  two  counties.  Trus- 
tees elected  first  Monday  in  June,  annually.  Notice  of  meeting 
to  be  given,  posted  in  three  places,  one  on  school-house,  for  ten 
days.  Annual  meeting  may  transact  any  lawful  business  per- 
taining to  schools. — Trustees  hold  the  property,  and  must  fur- 
nish necessary  supplies  and  apparatus,  and  allow  claims  not  to 
exceed  twenty-five  per  cent,  of  the  school  funds.  District  hav- 
ing $200,000  worth  of  taxable  property  may  be  organized  into 
independent  school  district  on  vote  of  one-fifth  of  voters.  They 
may  contract,  sue  and  be  sued,  take,  hold  and  convey;  shall 
choose  officers  of  the  board  of  trustees.  Two  trustees  are  elected 
biennially.  No  officer  can  receive  pay  or  compensation.  Board 
of  trustees  make  by-laws ;  employ  or  discharge  teachers  and  em- 
ployes ;  fix  compensation  and  tuition  for  non-residents ;  pre- 


ILLINOIS.  343 


scribe  course  of  study  and  text-books,  one  kind  of  text-book  to 
be  used  in  same  grade,  and  must  not  be  changed  in  less  than 
three  years  unless  price  is  unwarrantably  raised,  mechanical 
quality  lowered,  or  supply  stopped ;  may  provide  furniture  and 
apparatus ;  rent,  repair  or  insure  school-house  ;  build  or  remove 
school-house ;  purchase  or  sell  lots ;  suspend  or  expel  pupils ; 
exclude  children  under  six  years  of  age ;  determine  the  time  of 
teaching ;  provide  books  for  poor ;  exclude  sectarian  publica- 
tions; protect  morals. — State  Superintendent  has  general 
supervision ;  furnishes  blanks  and  forms. — County  Superin- 
tendent issues  teachers'  certificates :  First  grade  two  years, 
second  grade  one  year,  third  grade  six  months.  County  super- 
intendent has  commission  on  fund  expended.  Teachers'  insti- 
tute may  be  held  annually  by  county  superintendent  by  giving 
ten  days'  notice.  Bonds  may  be  issued  for  building  school- 
houses,  by  vote  of  district. 

ILLINOIS. 
(Compiled  by  HON.  HENKY  RAAB,  State  Superintendent.) 

System  :  Superintendent  public  instruction,  county  superin- 
tendent, township  trustee,  township  treasurer,  board  directors 
of  district,  boards  of  education  of  cities  and  towns.  —  State 
Superintendent  exercises  general  supervision ;  can  establish 
rules,  hear  and  determine  appeals,  grant  state  certificates  to 
teachers. — County  Superintendent  may  sell  township  lands ; 
register  applicants  for  admission  to  State  Normal  University 
and  to  the  University  of  Illinois ;  visit,  and  exercise  supervision 
over,  the  schools  of  the  county ;  conduct  teachers'  institutes ; 
examine  accounts  of  township  treasurers ;  attend  to  changes  of 
boundaries  on  appeal ;  give  notice  of  election  of  school  di- 
rectors in  certain  cases ;  examine  teachers,  grant  certificates  to 
teachers,  require  trustees  to  report,  renew  and  revoke  teachers' 
certificates,  and  remove  school  director  for  cause. — Township 
Trustees  hold  school  property.  Supervision  and  control  of 
school-houses  and  sites  vested  in  board  of  directors  of  the  dis- 


SYNOPSES   OF   SCHOOL    LAWS. 


trict.  Trustees  may  alter  districts  by  direction  of  voters,  on 
petition  of  voters.  —  Board  of  Directors,  three  in  a  district, 
elected  annually,  one  for  three  years  ;  notice  of  election  to  be 
given  for  ten  days,  in  three  public  places.  No  director  shall 
be  interested  in  contract.  Their  duty  is,  to  make  report  of  ex- 
penses ;  employ  teachers,  to  provide  revenue,  establish  schools, 
to  make  rules,  to  visit  schools,  direct  course  of  study  and  text- 
books, and  enforce  uniformity  of  text-books  —  no  text-book  to 
be  changed  oftener  than  once  in  four  years;  may  purchase 
text-books  for  poor  children,  to  be  loaned  ;  may  dismiss  teacher 
for  incompetency,  cruelty,  negligence,  immorality,  or  other 
good  cause;  may  admit  non-resident  pupils  and  fix  tuition; 
may  suspend  or  expel  pupils  guilty  of  gross  disobedience  or 
misconduct,  and  are  not  liable  therefor  ;  may  sell  property  not 
needed  ;  grant  special  holidays  ;  and  grant  use  of  school-houses 
for  religious,  literary,  and  other  purposes.  —  Boards  of  Educa- 
tion of  cities  and  villages  of  1,000  or  more  inhabitants  have 
the  power  of  school  directors,  and  may  furnish,  repair,  or  im- 
prove school-houses,  and  furnish  supplies  ;  examine  and  employ 
teachers  ;  establish  schools  ;  lease  or  buy  sites,  but  may  not 
purchase  or  locate  unless  by  vote  of  the  district  ;  employ  super- 
intendent ;  expel  pupils  ;  dismiss  or  remove  teachers  ;  appor- 
tion scholars,  make  rules  ;  and  erect  buildings.  —  Teachers  : 
Graduates  of  county  normal  have  first-grade  certificates  for  two 
years  ;  state  superintendent  may  grant  certificates  for  life  and 
for  five  years  ;  county  superintendent  may  grant  for  two  years 
and  for  one  year,  and  may  renew  or  revoke.  No  teacher  with- 
out a  certificate  is  entitled  to  funds.  Township  high  schools 
may  be  established.  —  Appeals  from  change  in  boundaries  by 
trustees  to  county  superintendent  ;  in  all  controversies  opinion 
of  county  superintendent  first  had,  and  appeal  to  the  state  su- 
perintendent. 

INDIANA. 

(Compiled  by  Hon.  HAKVEY  D.  VOKIES,  State  Superintendent.) 
System:  State    superintendent,  state    board    of   education, 
county  superintendent,  school  trustees,  school  directors,  general 


IOWA.  345 


and  special  state  institutions. —  State  Board  of  Education 

may  make  rules  and  by-laws ;  grant  state  certificates  for  life  un- 
less revoked ;  also,  eight  years'  professional  license.  County 
superintendent  is  appointed  by  township  trustees.  He  shall  ex- 
amine teachers  and  license  them  for  six,  twelve,  twenty-four  and 
thirty-six  months,  and  may  revoke  license  for  incompetency, 
cruelty,  immorality,  or  negligence ;  and  shall  report  basis  of  ap- 
portionment to  county  auditor.  County  board  of  education 
shall  have  charge  of  all  matters  in  regard  to  furniture,  maps, 
charts,  etc.  State  board  of  education  may  select  or  procure  a 
series  of  text-books,  and  when  adopted  by  the  board  they  shall 
be  used  by  the  schools.  Township  trustees  employ  teachers, 
locate  schools,  build  suitable  houses,  furnish  necessary  supplies, 
establish  graded  schools,  have  charge  over  the  property  belong- 
ing to  their  corporation. —  Cities  of  30,000  or  more  may  have 
board  of  school  commissioners,  who  may  levy  taxes,  examine  and 
license  teachers,  purchase  grounds,  contract  for  building,  teachers, 
superintendent,  disburse  money,  regulate  instruction  and  dis- 
cipline, and  issue  and  sell  bonds.  Bible  shall  not  be  excluded 
from  public  schools. — Teachers :  No  teacher  can  be  employed 
without  license,  and  shall  forfeit  compensation  for  time  teaching 
without  license.  Person  insulting  teacher  in  presence  of  school 
is  liable  to  fine.  School-house  may  be  used  for  private  school 
by  order  of  trustees ;  and  it  may  be  used  for  religious  or  other 
meetings  by  direction  of  voters. — Appeals  lie  from  county  su- 
perintendent to  superintendent  public  instruction,  and  from 
trustees  to  county  superintendent.  School  trustees  may  furnish 
books  for  poor ;  school-books  now  adopted  are  sold  by  the  state. 

IOWA. 

(Compiled  by  Hon.  J.  B.  KNOEPFLEB,  State  Superintendent.) 

Districts:  In  law,  two  forms  —  district  townships  and  inde- 
pendent districts.  The  district  township,  divided  into  sub-dis- 
tricts, is  conterminous  with  the  civil  township.  A  civil  township 
may  be  one  or  more  independent  districts.  A  city  or  village 


346  SYNOPSES   OF    SCHOOL   LAWS. 

may  be  independent.  Most  boundaries  may  be  changed  by 
boards.  Electors  meet  in  sub-districts  first  Monday  in  March. 
— Annual  Meeting  of  electors  in  all  districts  on  second  Mon- 
day in  March.  Special  meeting  when  school-house  is  destroyed, 
also  in  independent  districts  to  vote  bonds  and  divide  district. 
All  taxes  to  build  voted  by  electors.  May  direct  board  to 
have  certain  branches  taught,  dispose  of  property,  and  direct 
use  of  school-houses.  Ten  days'  notice  of  meetings. — Boards : 
Women  eligible  to  any  school  office.  President  chosen  third 
Monday  in  March ;  secretary  and  treasurer,  third  Monday  Sep- 
tember. Boards  determine  amount  of  teachers'  and  contingent 
funds,  and  fix  months  of  school.  May  establish  graded  schools 
and  adopt  course  of  study;  have  full  control  over  schools, 
teachers  and  scholars ;  locate  sites  and  build  school  houses ; 
provide  extra  school  for  any  ten  scholars.  Must  have  effects  of 
alcoholic  drinks,  stimulants  and  narcotics  taught.  May  main- 
tain an  industrial  exposition  in  each  school.  Must  set  out 
shade-trees.  May  insure  property.  Keceive  no  compensation. 
— Contracts:  Boards  must  carry  into  effect  vote  of  electors. 
For  apparatus,  must  be  for  cash.  All  claims  must  be  audited 
and  allowed  before  order  is  drawn.  Orders  not  paid  draw  six 
per  cent,  after  being  indorsed  by  the  treasurer. — Text-Books : 
Counties  may  vote  uniformity,  town  and  village  independent 
districts  being  exempted.  Any  district  in  county  not  having 
voted  county  uniformity  may  contract  for  five  years,  purchase, 
and  sell  text-books  at  cost ;  or,  such  district  may  adopt  for  three 
years  without  contracting  or  purchasing.  —  Teachers*  Con- 
tracts: All  contracts  with  teachers  must  be  in  writing,  be 
approved  by  the  president  and  filed  with  him,  and  copy  filed 
with  secretary.  Teachers  may  be  discharged  only  after  full  and 
fair  investigation  by  the  board. — Teachers'  Certificates: 
Every  teacher  drawing  public  money  must  have  a  state  certifi- 
cate or  diploma,  or  a  certificate  from  the  county  superintendent. 
Such  credentials  may  be  revoked,  for  cause. — Scholars:  School 
age,  both  for  enumeration  and  attendance,  five  to  twenty-one. 


KANSAS.  34T 


Teacher  has  full  control  over  scholars,  unless  restricted  by  a 
rule  of  the  board.  Corporal  punishment  is  not  forbidden.  The 
sub-director,  with  concurrence  of  the  president,  may  dismiss  for 
gross  immorality,  or  persistent  violation  of  the  rules  or  regula- 
tions. Same  power  is  vested  in  majority  of  board  in  independent 
districts,  with  concurrence  of  president. — County  Superin- 
tendent and  Superintendent  of  Public  Instruction: 
The  county  superintendent  has  general  control  over  schools  and 
teachers  in  his  county.  May  visit  schools.  Must  visit  any 
school  at  least  once  in  the  term,  on  request  of  majority  of  the 
board.  Must  select  instructors  and  hold  normal  institute. 
Examines  teachers  and  issues  certificates  for  one  year  or  less.. 
Hears  and  decides  appeals  from  orders  made  by  boards.  Makes 
a  complete  annual  report.  The  superintendent  of  public  in- 
struction has  general  supervision  of  the  county  superintendents 
and  the  common  schools.  May  meet  county  superintendents  in: 
convention.  As  far  as  able,  must  attend  and  lecture  before 
teachers'  institutes.  Must  give  written  opinion  in  explanation 
of  the  school  laws.  Decides  appeals  from  decisions  made  by 
county  superintendents  on  appeal.  Appoints  county  normal 
institutes  and  approves  of  instructors  therein.  Compiles  school 
laws  and  decisions.  Is  president  of  board  of  state  normal 
school,  president  of  board  of  educational  examiners,  and  a 
regent  of  the  state  university.  Makes  to  the  governor,  bien- 
nially, a  full  statistical  report  of  the  condition  and  progress  of 
the  public  schools,  with  plans  for  their  more  perfect  organiza- 
tion and  efficiency. 

KANSAS. 
(Compiled  by  Hon.  G.  W.  WINANS,  State  Superintendent.) 

System :  State  superintendent,  county  superintendent,  school 
districts,  board  education  cities,  school  fund  commissioners, 
county  examining  board,  city  examining  board,  state  board  of 
education. —  State  Superintendent  has  charge  of  educational 
interests,  distributes  state  school  fund,  gives  opinion  to  county 
superintendents,  publishes  school  laws,  and  visits. —  County 


348  SYNOPSES   OF   SCHOOL   LAWS. 

Superintendent  visits,  suggests,  reports,  encourages,  keeps 
record,  keeps  register,  apportions  dividend,  alters  districts  on 
petition,  and  from  such  alteration  or  formation  an  appeal  lies  to 
the  county  commissioners.  —  Districts:  Meeting  designates 
site,  votes  annual  taxes  and  directs  the  same  to  be  used  to  build, 
hire,  or  purchase  school -house;  authorizes  contract,  sale  of 
school-house  and  property ;  and  the  District  Board  is  director, 
clerk,  and  treasurer.  It  has  care  of  property,  admits  non-resi- 
dent scholars,  hires  teachers,  and  with  the  county  superintendent 
may  dismiss  for  incompetency,  cruelty,  negligence,  or  immor- 
ality. District  board  may  suspend  pupil  for  immorality  or  vio- 
lation of  regulation,  for  the  term.  An  appeal  to  the  county 
superintendent,  whose  decision  is  final,  is  given  to  the  pupil. 
District  board  shall  provide  necessary  appendages  for  the  school, 
and  may  authorize  use  of  building  for  religious  or  other  pur- 
poses.—  County  Board  Examiners,  county  superintendent 
and  two  persons  appointed  by  the  county  commissioners.  They 
may  issue  certificate  to  teachers :  first  grade  three  years,  second 
grade  two  years,  and  third  grade  one  year.  Temporary  certifi- 
cates may  be  granted  by  the  county  superintendent.  Board 
education  of  cities  of  the  first  and  second  class  appoint  examin- 
ing committee,  employ  teachers,  hold  property,  and  may  elect 
superintendent ;  and  cities  of  third  class  are  governed  as  dis- 
tricts and  union  districts.  County  high  school  may  be  estab- 
lished in  counties  of  6,000  population.  School  districts  and 
boards  of  education  in  a  county  may  adopt  uniform  series  of 
Text-Books;  and  text-book  board  may  be  elected  to  select  and 
prescribe  text-books  to  be  used  in  county.  No  sectarian  books 
shall  be  used,  but  Bible  may  be  read.  Persons  willfully  refus- 
ing to  admit  children  into  common  schools  of  the  district,  when 
entitled,  forfeit  $100  a  month. —  State  Board  of  Education 
consists  of  the  state  superintendent,  chancellor  of  State  Uni- 
versity, president  of  State  Agricultural  College,  and  president  of 
the  State  Normal  School.  The  state  board  prepare  questions 
for  examination  of  teachers.  They  may  issue  diplomas,  counter- 


KENTUCKY.  349, 


signed  by  the  state  superintendent,  good  for  life ;  or  certificate 
of  high  qualification  for  three  or  five  years,  valid  in  any  county,, 
city,  town  or  school  district  in  the  state. 

KENTUCKY. 

( Compiled  by  Hon.  ED.  POUTER  THOMPSON,  State  Superintendent.) 
School  Districts  may  not  be  larger  than  sixteen  square 
miles,  and  are  seldom  so  large;  and  in  the  country  contain 
from  45  to  100  pupils;  governed  by  three  trustees,  who 
may  meet  at  any  time.  District  lines  may  be  altered  by  the 
county  superintendent  on  due  notice.  —  Trustees  may  levy 
a  tax  to  build  and  furnish  a  house;  employ  a  teacher,  and 
agree  on  the  price  and  length  of  term  —  not  less  than  five- 
months,  except  in  special  cases ;  must  visit  parents  in  the- 
interest  of  their  schools ;  must  visit  school  once  a  month ; 
make  report  annually  of  children  in  their  district  to  county  su- 
perintendent ;  must  report  school  as  taught,  month  by  month ; 
must  supplement  teacher's  report,  &c.,  &c.  All  money  raised 
by  taxes  for  the  schools  goes  into  the  hands  of  the  county  su- 
perintendent, and  he  pays  the  same  on  the  order  of  the  trustees. 
Money  paid  by  the  state  is  assigned  to  each  district  by  the  state 
officer  and  paid  to  county  superintendent  for  the  benefit  of  said 
district,  and  paid  to  teacher  of  same  by  county  superintendent 
monthly,  on  order  of  the  trustees. — The  State  Board  of  Edu- 
cation adopts  a  number  of  school-books  on  each  subject  re- 
quired to  be  taught,  from  which  the  county  superintendent  i& 
authorized  to  select  one  on  each  subject  for  his  county,  which 
may  not  be  changed  for  five  years ;  at  end  of  the  five  years,  he 
readopts  or  changes  for  others  on  the  state  list.  —  Teachers 
contract  with  the  trustees  of  each  school  district  for  one  session.. 
Contract  must  be  in  writing. — The  State  Board  formulates 
questions  on  each  subject  required  to  be  taught.  These  are 
sent  to  a  county  board — of  which  the  county  superintendent  is 
one— in  July,  August,  September,  November  and  January  of 
each  year,  and  county  board  conducts  the  examination  and. 


350  SYNOPSES    OF   SCHOOL   LAWS. 

estimates  the  value  of  answers  which  are  written,  and  grants 
first,  second,  and  third-class  certificates  on  an  average  of  85,  75, 
and  65  per  cent,  of  correct  answers,  good  for  four  years,  two 
years,  and  one  year,  respectively,  but  only  in  the  county  in 
which  issued.  —  Pupils  are  white  and  colored  from  six  to 
twenty  years  old  —  separate  schools  for  each.  —  Teacher  is 
in  loco  parentis ;  chooses  his  own  mode  of  punishment,  and  is 
responsible  in  damages  for  abuse ;  makes  his  own  rules,  subject 
to  statute. — State  and  County  Superintendents  are  elected 
by  popular  vote  for  four-  years.  They  superintend  the  distribu- 
tion of  state  funds  to  districts,  which  has  amounted  to  $2.25  to 
each  pupil  for  some  years.  They  are  to  see  that  properly 
qualified  teachers  only  are  employed,  suitable  school-houses  are 
provided,  and  only  suitable  text-books  are  used,  and  in  every 
way  possible  promote  popular  education.  County  superintend- 
ent makes  several  annual  reports  to  state  superintendent  show- 
ing condition  of  the  schools.  These  the  state  superintendent 
compiles  and  publishes  biennially  for  the  legislature,  with  such 
recommendations  as  he  deems  important. 

LOUISIANA. 
(Compiled  by  Hon.  W.  H.  JACK,  State  Superintendent.) 

The  legislature  is  commanded  "to  establish  throughout  the 
state  free  public  schools  for  the  education  of  all  the  children 
between  the  ages  of  six  and  eighteen  years,  and  to  provide  for 
their  maintenance  and  support  by  taxation  or  otherwise.  And 
the  money  so  raised  (except  the  poll  tax)  is  to  be  distributed  to 
each  parish  in  proportion  to  the  number  of  children  between 
the  ages  of  six  and  eighteen  years." — The  State  Superin- 
tendent  is  made  the  chief  director  of  the  department  of  edu- 
cation. He  is  expressly  charged  with  the  duty  of  seeing  that 
the  school  system  is  carried  into  effect  properly,  and  he  is  vested 
with  sufficient  power  and  authority  to  direct  and  control  the 
subordinate  branches  of  his  department  in  matters  of  adminis- 
tration. His  office  is  constitutional  and  elective,  and  his  term 


LOUISIANA.  351 


of  service  is  for  four  years.  In  case  of  vacancy,  the  governor 
appoints  his  successor,  subject  to  the  confirmation  of  the  senate 
at  the  next  meeting  of  the  general  assembly.  He  is  charged 
with  the  general  supervision  of  the  various  boards  of  education 
and  of  all  the  common,  high  and  normal  schools  of  the  state, 
including  the  deaf  and  dumb  and  blind  institutes,  and  is  re- 
quired to  visit  annually  each  parish  or  school  district  in  the 
state.  It  devolves  on  him  to  make  the  quarterly  apportion- 
ments of  the  school  funds,  receive  the  annual  reports  of  the 
parish  superintendents  and  parish  treasurers,  keep  records  of 
the  proceedings  of  the  state  board  and  of  his  official  acts,  file 
all  papers  pertaining  to  the  department,  decide  controversies  and 
disputes  between  directors,  between  parish  superintendents  and 
the  local  boards,  and  between  superintendents  and  teachers,  sub- 
ject to  appeal  in  fifteen  days  to  the  state  board.  He  is  required 
to  give  advice,  explanations,  construction  and  information  to  the 
district  officers,  superintendents,  and  citizens,  relative  to  the  com- 
mon-school law,  and  generally  on  all  questions  pertaining  to  the 
cause  of  public  education.  He  is  required  to  report  to  the  gen- 
eral assembly,  at  its  biennial  session,  the  amount  and  condition 
of  the  public  school  fund,  the  sources  from  which  derived,  and 
the  disposition  of  the  same,  as  well  as  the  amounts  collected  and 
disbursed  for  schools  from  local  taxation  and  other  sources,  with 
abstracts  of  the  reports  of  the  parish  superintendents  and  of  the 
parish  treasurers  incorporated  therein,  with  such  suggestions  and 
recommendations  as  to  the  public  school  system  as  he  may  deem 
proper.  All  papers  from  his  office  under  his  seal  and  certificate 
are  as  admissible  in  evidence  as  would  be  the  originals.  The 
several  members  of  the  state  board  of  education  and  the  various 
parish  boards,  with  their  superintendents  and  treasurers,  com- 
prise the  other  officers  belonging  to  the  educational  department. 
The  State  Board  appoints,  for  each  rural  parish  in  the  state, 
not  less  than  five  nor  more  than  nine  duly  qualified  citizens,  as 
School  Directors  for  such  parish,  who  are  accordingly  com- 
missioned by  the  governor  for  a  term  of  four  years.  This  board 


352  SYNOPSES   OF  SCHOOL   LAWS. 

is  specially  charged  with  the  duty  of  preparing  rules,  by-laws 
and  regulations  for  the  guidance  and  government  of  the  common 
schools,  to  be  enforced  by  the  parish  superintendents  and  parish 
board,  and  they  are  furthermore  required  to  give  directions  as 
to  the  branches  of  study  to  be  taught.  One  of  their  main  du- 
ties is  to  select  and  adopt  a  series  of  Text-Books  to  be  used  in 
all  the  public  schools  for  a  period  of  four  years,  with  the  view 
and  to  the  end  of  securing  uniformity  in  this  respect,  in  all  the 
schools;  and  to  contract  with  publishers  theref9r  on  certain 
terms  and  conditions.  They  are  moreover,  when  assembled,  a 
quasi  court  of  appeal  to  review  the  decisions  of  the  state  super- 
intendent in  cases  properly  brought  before  them.  A  record  of 
their  proceedings  is  kept  by  the  state  superintendent,  and  pre- 
served in  the  archives  of  his  office.  The  state  boards  and  par- 
ish boards  are  severally  "bodies  corporate,"  with  powers  to  sue 
and  be  sued,  and  to  exercise  other  powers  common  to  such  bodies. 
The  Parish  Boards,  with  their  officers,  are  placed  in  immediate 
charge  of  the  public  schools,  and  in  the  nature  of  things  their 
powers  and  responsibilities  are  great,  and  their  duties  are  delicate 
and  difficult.  They  elect  a  president  from  their  own  number,  and 
appoint  or  elect  a  parish  superintendent.  Their  more  prominent 
duties  may  be  thus  stated :  They  determine  the  location  of  school- 
houses  ;  number  of  schools  to  be  taught ;  number  of  teachers  to 
be  employed  and  their  salaries ;  the  proportion  of  funds  to 
the  several  school  districts ;  and  they  establish  graded  schools, 
also  central  or  high  schools  with  the  sanction  of  the  state  board 
when  the  site  and  buildings  are  donated.  Moreover,  they  divide 
the  parish  into  school  districts  in  manner  best  suited  to  the  in- 
terest of  the  schools,  receive  land  by  purchase  or  donation  for 
the  purpose  of  erecting  school-houses,  and  make  all  necessary 
contracts  for  the  erection  or  repair  of  such  houses.  The  parish 
superintendent,  in  point  of  active  duty,  is  the  principal  local 
officer.  He  is  ex  qfficio  secretary  of  the  board,  and  as  such 
keeps  a  record  of  their  proceedings  and  of  his  own  official  acts. 
It  is  made  his  duty  to  visit  every  school  in  the  parish  at  least 


MAINE.  353 


once  in  every  year  of  his  term.  In  conjunction  with  the  presi- 
dent of  the  board,  and  another  member  appointed  for  that  pur- 
pose, he  selects  the  public-school  teachers,  and  with  the  aid  of 
two  competent  persons  appointed  by  the  board  he  examines 
applicants  for  schools  and  pronounces  upon  their  qualifications. 
The  grades  are  regulated  and  determined  by  the  character  of 
studies  pursued  in  the  particular  school,  and  certificates  are 
issued  to  the  teachers  of  those  schools  accordingly,  as  follows : 
A  Teacher  found  competent  to  teach  spelling,  reading,  primary 
mental  arithmetic,  rudiments  of  practical  arithmetic  through  frac- 
tions and  simple  interest,  elementary  geography,  primary  gram- 
mar lessons,  and  laws  of  health,  receives  a  third-grade  certificate, 
and  is  paid  a  salary  graduated  accordingly ;  one  found  quali- 
fied to  teach  arithmetic,  geography,  English  grammar  and  com- 
position, United  States  history,  elements  of  natural  philosophy, 
and  elements  of  physiology,  is  entitled  to  a  second-class  certifi- 
cate and  a  proportionately  higher  salary ;  and  one  pronounced 
competent  by  the  examiners  to  teach  elocution,  spelling,  gram- 
mar, rhetoric,  literature,  history,  botany,  philosophy,  arithmetic, 
algebra,  geography,  and  geometry,  and  such  other  high-grade 
studies  as  the  boards  may  prescribe,  is  entitled  to  a  first-class 
or  high-school  certificate.  Since  the  1st  of  October,  1890,  no 
certificate  can  issue  to  any  new  applicant  to  teach  in  the  public 
schools  who  has  not  passed  a  satisfactory  examination  in  the 
study  of  the  nature  of  alcoholic  drinks  and  narcotics  and  their 
effects  upon  the  human  system,  in  connection  with  the  several 
subjects  of  relative  physiology  and  hygiene. 

MAINE. 

System:  State  superintendent,  superintending  school  com- 
mittee, school  agents,  supervisors,  districts,  towns.  A  town 
may,  at  annual  meeting,  determine  the  number  and  limits  of 
school  districts,  may  change  the  same ;  school  in  small  district 
may  be  suspended ;  remote  parts  of  town  may  be  omitted  in 
districting.  Towns  may  abolish  school  districts,  choose  school 


354  SYNOPSES   OF   SCHOOL   LAWS. 

agents,  empower  district  agents  to  employ  teachers ;  towns  shall 
raise  money  for  the  support  of  schools.  School  committee 
shall  make  rules  and  regulations  for  the  distribution  and  preser- 
vation of  school-books  and  appliances.  On  school-book  or  ap- 
pliance being  injured  or  lost  by  pupil,  his  parent  or  guardian 
shall  make  good  the  damages.  A  city  or  town  may  provide  for 
instruction  in  industrial  or  mechanical  drawing  in  either  day  or 
evening  schools. — Assessors  or  city  officers  shall  make  report 
to  state  superintendent  under  oath  of — 1st,  the  amount  voted  by 
the  town ;  2d,  the  amount  of  moneys  payable  to  the  town  from 
the  state ;  3d,  the  amount  of  money  expended  for  schools ;  4th, 
the  amount  of  school  moneys  unexpended ;  and  shall  answer 
other  inquiries. — State  Superintendent  shall  furnish  blanks, 
make  a  return  to  the  state  treasurer ;  no  money  appropriated 
for  public  schools  shall  be  paid  except  upon  written  order  is- 
sued upon  a  proper  voucher.  State  superintendent  is  appointed 
by  the  governor,  with  the  advice  and  consent  of  the  council. 
The  superintendent  shall  keep  an  office  at  the  seat  of  govern- 
ment, preserve  reports,  exercise  general  supervision  of  schools, 
obtain  information,  take  necessary  measures  to  hold  state  edu- 
cational conventions,  may  hold  county  institutes,  publish  ab- 
stracts of  the  proceedings  of  such  conventions,  prescribe  studies 
to  be  taught,  make  report  to  governor  and  council  annually, 
compile,  publish,  and  distribute  amended  school  laws ;  may  issue 
circulars  of  information,  prepare  blanks.  —  Town  at  annual 
meeting  shall  choose  superintending  school  committee  of  three, 
or  shall  choose  a  supervisor  of  schools.  A  town  failing  to  choose 
a  committee  or  a  supervisor  forfeits  not  less  than  $30  nor  more 
than  $200.  Towns  may  make  by-laws  concerning  truants,  and 
appoint  prosecutors  to  complain  of  violation  of  by-laws.  Tru- 
ant children  may  be  placed  in  suitable  institutions.  Compulsory 
education  is  required.  Free  high  schools  may  be  established. 
— School  Districts  are  corporations.  School-district  meetings 
are  called  by  the  agent,  upon  a  written  application  of  three 
or  more  voters,  stating  the  reasons  and  objects.  When  there 


MAINE.  355 


is  no  agent,  or  when  he  neglects,  it  may  be  called  by  municipal 
officers  or  by  a  justice  of  the  peace,  and  the  district  may  deter- 
mine the  manner  of  notifying  future  meetings.  School  district 
may  choose  a  school  agent.  The  district  has  power  to  raise 
money  for  erecting,  repairing,  renting,  purchasing  and  removing 
school-house,  for  land,  apparatus,  appliances,  water,  and  for  in- 
closing grounds.  They  may  locate  school-house,  dispose  of 
school  property,  regulate  admission  to  schools,  instruct  superin- 
tending school  committee  or  supervisor  when  school  shall  com- 
mence. They  have  power  to  allow  the  school-house  to  be  used 
for  religious  worship  or  other  similar  purposes.  District  having 
county  graded  schools  may  choose  a  committee  to  superintend 
the  expenditure  of  money.  A  minority  on  money  questions 
may  appeal  to  town.  School  districts  may  be  formed  from  two 
or  more  towns. —  Superintending  School  Committee  shall 
designate  by  lot  one  of  their  number  to  hold  three  years,  and 
another  two  years ;  and  the  third  member  shall  hold  office  one 
year;  and  each  member  elected  thereafter  holds  office  three 
years.  They  shall  appoint  time  and  place  for  examination  of 
teachers,  employ  teachers,  issue  certificates,  or  render  valid  by 
indorsement  any  graded  certificates  issued  to  teacher  by  normal- 
school  principal,  county  supervisor,  or  state  superintendent. 
They  shall  direct  the  general  course  of  instruction,  and  select  a 
uniform  series  of  Text-Books,  not  to  be  changed  for  five  years, 
purchase  books,  examine  schools,  dismiss  teacher  for  cause. 
They  shall  expel  any  obstinately  disobedient  and  disorderly 
scholar,  after  a  proper  investigation  of  his  behavior,  if  found 
necessary  for  the  peace  and  usefulness  of  the  school,  and  restore 
him  on  satisfactory  evidence  of  his  repentance  and  amendment ; 
exclude  persons  not  vaccinated,  classify  scholars,  make  annual 
report,  make  annual  statement.  —  Powers  and  duties  of 
School  Agents :  They  shall  call  school  meetings,  provide  fuel 
and  utensils,  make  reports,  procure  insurance.  If  one  neglects, 
special  agent  may  be  employed.  Shall  return  account,  and  re- 
turn under  oath  a  list  of  all  the  school  children.  Person  teach- 


356  SYNOPSES  OF   SCHOOL  LAWS. 

ing  without  Certificate  forfeits  all  money  contracted  for.  ISfo 
teacher's  certificate  shall  be  valid  for  more  than  one  year  with- 
out the  approval  of  the  superintending  school  committee  an- 
nually indorsed  thereon.  Disturbing  school  or  injuring  school 
or  school  property,  liable  to  a  penalty. 

MARYLAND. 
(Compiled  by  Hon.  E.  B.  PBETTYMAN,  State  Superintendent) 

System:  State  board  education,  county  school  commission- 
ers, district  school  trustees,  county  examiners.  —  Boards  of 
county  school  commissioners  have  care  of  school  property. 
They  may  examine  charges  against  teacher,  annul  certificate, 
from  which  appeal  lies  to  the  state  board  education. — District 
School  Trustees  have  charge  of  schools,  furniture  and  appa- 
ratus, attend  to  repairs,  employ  teacher  subject  to  confirmation 
of  county  school  commissioner.  They  may  suspend  or  expel 
pupil  for  cause,  and  appeal  lies  to  board  county  school  commis- 
sioners.— Teachers  must  have  certificate  from  county  examiner, 
or  from  principal  of  state  normal  school,  or  life  certificate  from 
state  board  of  education.  First-grade  certificate,  on  examina- 
tion, may  be  given  by  examiner  or  president  of  state  normal 
school.  State  normal-school  diploma  is  equivalent  to  first-grade 
life  certificate.  One  who  has  been  a  teacher  seven  years,  five 
years  in  Maryland,  may  have,  if  the  state  board  of  education 
grants  it,  a  life  certificate,  which  may  be  revoked  for  cause. 
We  have  provided  for  an  annual  examination  of  applicants  for 
life  certificates.  —  Text-Books:  School-books  shall  be  non- 
sectarian.  County  school  commissioner  may  adopt  and  purchase 
text-books  for  the  county.  —  County  Examiner  examines 
teacher,  gives  certificates — first  grade  and  second  grade  good 
for  five  years,  unless  revoked.  Any  person  disturbing  public 
school  during  session  shall  be  fined  or  imprisoned.  Effect  of 
alcohol  and  narcotics  must  be  taught. 


MASSACHUSETTS.  357 


MASSACHUSETTS. 
(Compiled  by  the  Hon.  J.  W.  DICKINSON,  Secretary  State  Board.) 

System:  State  board  of  education,  secretary  state  board, 
normal  schools,  towns,  superintendents.  —  State  Agents  of 
the  Board:  The  board  employs  six  agents.  Five  of  these  are 
appointed  for  a  general  inspection  and  examination  of  the  pub- 
lic schools  of  the  state,  for  conferences  with  school  committees 
and  teachers,  for  instruction  in  teachers'  institutes,  and  for  lec- 
tures before  the  people  on  subjects  connected  with  public  in- 
struction. One  is  employed  in  directing  and  supervising  the 
drawing  required  by  the  statutes  to  be  taught  in  the  public 
schools.  Through  the  observations  made  by  the  secretary  and 
agents  of  the  board,  the  condition  of  the  public  schools  in  all 
parts  of  the  commonwealth  may  be  known  at  any  time.  The 
knowledge  thus  obtained  furnishes  the  basis  of  all  school  legis- 
lation. Each  one  of  the  agents  has  a  certain  part  of  the  state 
assigned  to  him  as  his  field  of  work. —  Secretary  state  board 
shall  have  general  supervision,  attend  meetings  of  teachers 
when  directed  by  the  board,  obtain  information,  make  reports, 
send  out  blanks. — Town  may  elect  school  committee  of  three 
persons,  or  a  number  divisible  by  three.  Committee  shall  ap- 
point a  secretary  and  keep  a  record ;  shall  select  and  contract 
with  teachers.  —  Teacher  must  have  certificate.  Committee 
may  issue  certificates,  dismiss  teachers,  visit  schools,  require 
Bible  to  be  read  when  not  against  conscientious  scruples ;  no 
sectarian  books  to  be  used.  Shall  prescribe  text-books  and 
studies.  They  may  purchase,  at  the  expense  of  the  state  or 
town,  text-books  to  be  used  in  the  schools,  to  be  loaned  pupils 
free  of  charge,  and  may  purchase  apparatus  for  the  use  of  the 
schools.  The  school  committee  has  charge  and  superintend- 
ence of  the  use  of  the  school-house. — Text-Books  may  be 
changed  by  vote  of  two-thirds  of  the  whole  school  committee. 
Town  may  require  the  school  committee  to  appoint  a  superin- 
tendent; union  districts  may  employ  a  superintendent.  The 
school-house  is  located  by  town  meeting,  and  land  may  be  con- 


358  SYNOPSES   OF  SCHOOL   LAWS. 

demned  for  school-house  and  the  owner  may  have  trial  by  jury. 
Persons  disturbing  school  shall  be  fined.  Teachers  shall  in- 
struct as  to  effects  of  narcotics  and  alcohol.  Compulsory  edu- 
cation is  required. 

MICHIGAN. 
(Compiled  by  Hon.  FERRIS  S.  FITCH,  State  Superintendent.) 

Townships  are  divided  into  districts  by  township  board  of 
inspectors.  Inspectors  alter  boundaries  of  districts  in  their  dis- 
cretion. District  has  three  officers  —  moderator,  director,  and 
assessor,  one  elected  each  year;  term  of  office  three  years. 
Annual  district  meeting  held  first  Monday  in  September,  and 
special  meeting  may  be  called  on  six  days'  notice.  Districts 
with  more  than  one  hundred  children  may  organize  as  graded- 
school  districts,  with  a  board  of  five. — District  Board  reports 
taxes,  manages  school  funds,  purchases  and  leases  sites  and 
builds  school -houses,  employs  teachers,  prescribes  text -books 
and  course  of  study,  and  establishes  all  necessary  regulations 
for  management  of  schools,  and  makes  annual  report. — Di- 
rector provides  all  necessary  appendages,  and  keeps  school- 
house  in  repair.  Director  draws  and  signs  warrants  upon 
township  treasurer  for  all  moneys  raised  for  district  purposes, 
payable  to  assessor  of  district,  and  orders  upon  assessor  for 
moneys  to  be  disbursed  by  district. — Text-books  adopted  by 
district  boards.  Physiology  must  have  certain  portion  devoted 
to  effects  of  stimulants  and  narcotics  on  the  human  system. 
Books  once  adopted  not  to  be  changed  within  five  years.  Dis- 
trict may  vote  to  supply  free  text-books. — All  Contracts  with 
teachers  must  be  in  writing,  and  signed  by  majority  of  board. 
Contract  with  person  not  holding  certificate  not  valid. — Three 
grades  of  certificates  granted  by  County  Board  of  Exam- 
iners—  first  grade  for  four  years,  second  grade  for  three  years, 
third  grade  for  one  year.  All  questions  for  county  examinations 
must  be  prepared  by  superintendent  of  public  instruction.  Life 
certificates  granted  by  state  normal  school,  state  university,  and 
state  board  of  education. — Rules  for  government  of  school  to 


MINNESOTA.  359 


be  made  by  district  board. — State  Superintendent  has  gen- 
eral supervision  of  schools,  apportions  primary-school  interest 
fund,  conducts  institutes,  appoints  visitors  to  chartered  educa- 
tional institutions.  County  commissioner  of  schools  has  gen- 
eral supervision  of  schools  of  county,  and  grants  certificates  to 

teach. 

MINNESOTA. 

System:  State  superintendent  of  public  instruction,  county 
superintendent,  common,  independent  and  special  districts,  high- 
school  board. —  Common-School  District  is  a  body  corporate. 
School  districts  are  common-school  districts,  independent  school 
districts,  special  school  districts.  Every  district  may  hold  title 
to  its  property.  Sites  may  be  acquired  by  condemnation.  A 
new  district  may  be  formed  by  the  county  commissioners,  proper 
steps  being  taken  ;  and  they  may  change  boundaries. — Women 
may  vote  and  hold  office. — District  Meeting  may  appoint 
moderator,  adjourn,  elect  director,  clerk  and  treasurer,  and  if 
necessary  choose  clerk  pro  tem.j  designate  or  change  site,  vote 
a  tax  to  purchase  or  lease  a  site,  to  build,  hire  or  purchase  a 
school-house,  keep  in  repair  and  provide  the  same  with  furniture 
and  appendages,  procure  fuel  and  purchase  school  apparatus. — 
Common-school  district  Board  of  Trustees  is  director,  treas- 
urer, and  clerk.  It  has  power  to  lease  or  purchase  a  site  for 
school-house  designated  by  the  voters.  Shall  build,  hire  or 
purchase  a  school-house  with  funds  provided  for  that  purpose, 
and  when  directed  may  sell  or  exchange  site  of  school-house. 
The  trustees  of  any  common  school,  independent,  special,  or 
free-school  district  may,  when  petitioned  therefor  by  a  majority 
of  the  legal  voters  of  the  district,  permit  the  school-house  in 
their  district  to  be  used  for  purpose  of  worship  or  such  other 
purposes  as  will  not  interfere  with  use  of  school-house  for  school 
purposes. — The  Board  of  Trustees  shall  hire  teachers  and 
contract  with  such  only  as  have  certificates,  but  no  contract  shall 
be  made  with  any  teacher  who  is  related  by  blood  or  marriage 
to  any  member  of  the  school  board  without  the  concurrence  of 


360  SYNOPSES   OF   SCHOOL   LAWS. 

all  the  members  of  the  board  of  trustees.  The  board  of  trus- 
tees may  sue  on  contracts  made  with  them  officially  to  enforce 
a  liability  or  a  duty  enjoined  by  law  in  favor  of  such  officers  of 
the  district ;  to  recover  damage  for  an  injury  to  their  official 
rights  or  property. — Independent  Districts  elect  six  as  board 

of  directors,  called  "The  Board  of  Education ;"  they  elect 

superintendents,  establish  schools,  provide  buildings,  purchase 
or  erect  school-houses,  purchase  sites  for  same,  purchase,  sell,  or 
exchange  school  apparatus,  furnish  fuel  for  schools,  take  care  of 
the  property  of  the  district,  procure  insurance  and  make  ordi- 
nary repairs  upon  the  same,  prescribe  text-books,  and  appoint 
three  school  examiners.  Examiners  may  give  teachers'  certifi- 
cates.—  County  Superintendents  shall  examine  and  license 
Teachers,  annul  certificates  for  cause,  visit  and  instruct  schools 
and  advise  teachers,  conduct  one  teachers'  institute  a  year ;  aid 
the  school  officers.  The  county  superintendent  may  issue  three 
grades  of  certificates :  first  grade,  valid  in  county  for  two  years ; 
second  grade,  valid  in  county  for  one  year ;  third  grade,  valid 
in  a  given  district  for  only  six  months.  They  may  renew  cer- 
tificates. No  person  shall  receive  a  first-grade  certificate  who 
has  not  taught  school  for  three  months.  The  diploma  from 
either  the  elementary  or  advanced  course  of  study  of  the  state 
normal  school  shall  be  valid  as  a  certificate  of  qualification  of 
the  first  grade  to  teach  in  the  public  schools  of  the  state  of 
Minnesota  for  a  period  covering  the  time  of  the  student's  pledge 
of  service,  namely,  two  years  from  date  of  graduation.  At  the 
end  of  two  years'  teaching,  the  diploma  of  such  graduate  may 
be  indorsed  by  the  president  of  the  normal  school  from  which 
it  was  issued,  and  by  the  state  superintendent  of  public  instruc- 
tion. Such  indorsement  shall  make  the  diploma  of  the  ele- 
mentary course  a  valid  certificate  for  five  years  from  its  date, 
and  the  diploma  of  the  advanced  course  a  permanent  certificate 
of  qualification. 


MISSISSIPPI.  361 

MISSISSIPPI. 
(Compiled  by  Hon.  J.  R.  PRESTON,  State  Superintendent.) 

System:  State  board  of  education,  superintendent  of  public 
education,  county  superintendents,  districts. — State  Board  of 
Education  consists  of  secretary  of  state,  attorney  general  and 
superintendent  of  public  education.  —  Superintendent  of 
Public  Education  has  general  supervision  of  the  schools, 
prescribes  rules  and  regulations,  presides  over  meetings  of  state 
board,  solicits  reports,  preserves  books,  apportions  state  fund, 
makes  reports,  keeps  a  record,  and  is  not  to  be  interested  in 
school-books. — State  Superintendent  shall  require  reports 
from  county  superintendents,  prepare  blanks  and  forms,  confer 
with  county  superintendents,  give  opinions. — County  Super- 
intendent appointed  in  certain  counties,  elective  in  all  others. 
Candidates  to  be  examined.  He  shall  have  an  office,  keep  rec- 
ord, preserve  reports,  and  shall  not  teach  school. — Board  of 
Education  shall  appoint  county  superintendent  in  appointive 
counties,  shall  decide  appeals  from  county  superintendents  or 
from  decisions  of  state  superintendent,  and  their  decision  shall 
be  final;  may  suspend  county  superintendents  for  neglect  of 
duty.  (This  is  not  to  apply  to  elective  county  superintendents.) 
May  remove  county  superintendents  for  neglect  of  duty,  drunk- 
enness, incompetency,  or  misconduct.  They  shall  audit  claims, 
fix  expenses  of  state  superintendent's  office,  and  regulate  the 
course  of  study. — County  Superintendents  shall  employ 
teachers  recommended  by  local  trustees,  holding  certificates; 
they  shall  examine  reports,  fix  salaries,  enforce  course  of  study 
adopted  by  the  board  of  education  and  uniform  text-books,  visit 
schools,  distribute  reports,  annually  make  report,  file  a  list  of 
teachers  with  chancery  and  municipal  clerks,  and  keep  a  record. 
They  may  remove  teacher  for  cause.  May  revoke  teacher's 
license.  They  are  not  to  speculate  in  warrants.  —  School 
Board  shall  consist  of  one  member  from  each  supervisor's  dis- 
trict, appointed  by  superintendent,  subject  to  ratification  by  the 
board  of  supervisors.  The  superintendent  shall  be  president  of 


362  SYNOPSES   OF   SCHOOL   LAWS. 

the  board.  There  shall  be  three  Trustees  for  each  school 
district.  They  shall  select  teachers  ;  they  may  suspend  or  expel 
pupils  for  misconduct,  visit,  provide  fuel,  protect  school  property, 
arbitrate  disputes,  from  which  an  appeal  lies.  They  cannot  use 
money  not  appropriated  for  the  purpose.  Trustees  of  separate 
school  districts  may  prescribe  and  enforce  rules,  manage  prop- 
erty, enforce  study  and  Text-Books  adopted  by  authority,  ap- 
point librarian,  enforce  rules  of  library,  exclude  sectarian, 
partisan  or  immoral  books,  suspend  or  expel  pupils  for  miscon- 
duct, visit,  furnish  blackboards  and  furniture;  elect  superin- 
tendent, if  one  is  required,  and  a  principal ;  elect  teachers  and 
fix  their  salaries ;  impose  fines  and  penalties  for  neglect.  All 
teachers  must  have  license  from  county  superintendent.  All 
trustees  have  power  to  exclude  children  of  filthy  or  vicious 
habits,  or  suffering  from  contagious  diseases.  Two  first-grade 
teachers,  with  the  county  superintendent,  constitute  Board  of 
Examiners.  First-grade  license,  with  general  average  of  85, 
valid  for  two  years ;  a  license  of  first  grade,  with  general  aver- 
age of  90,  good  for  three  years ;  and  a  second  three-years 
license,  obtained  after  the  expiration  of  the  first,  shall  be  renew- 
able in  the  county  as  long  as  the  holder  continues  to  teach. 
Teaching  five  years  under  first-grade  license  exempts  from  fur- 
ther examinations. — County  School  Board  appoints  text-book 
board  to  adopt  series  of  text-books,  which  may  be  changed 
every  five  years.  Pupils  must  comply  with  the  regulations, 
pursue  required  course  of  study,  and  submit  to  the  authority  of 
the  teacher.  Any  pupil  injuring  the  school  property  is  liable 
to  suspension  or  expulsion ;  and  their  parents  or  guardians 
are  liable  for  all  damages.  Any  person  abusing  teacher  in 
presence  of  school,  liable  to  fine.  Any  person  disturbing  public 
school  is  liable  to  fine.  Institutes  held  annually  in  each  county  ; 
conductors  selected  by  board  of  examiners  from  a  list  appointed 
by  state  board  of  education.  Board  of  examiners  may  apply 
20  per  cent,  of  surplus  institute  fund  to  purchase  of  works  on 
teaching,  which  shall  be  held  in  charge  by  superintendent  for 
use  of  teachers. 


MISSOURI.  36$ 


MISSOURI. 
(Compiled  by  Hon.  L.  E.  WOLFE,  State  Superintendent.) 

District  Organization :  The  control  of  the  country  districts 
is  under  a  board  of  three  directors,  one  chosen  each  year  for  a 
term  of  three  years.  The  control  of  city,  town  and  village  dis- 
tricts is  under  a  board  of  six  members,  two  of  whom  are  chosen 
every  year  for  a  term  of  three  years.  Special  meetings  of  the- 
board  must  be  called  by  the  president. — District  Boundaries : 
These  are  changed  by  the  qualified  voters  at  the  annual  April 
election.  When  the  districts  or  parts  of  districts  affected  fail 
to  agree,  an  appeal  may  be  made  to  the  county  commissioner 
whose  decision  is  final. — District  Boards:  (a)  Powers — To 
contract  with  qualified  teachers,  issue  warrants,  provide  neces- 
sary rules  and  regulations  for  the  government,  organization  and 
grading  of  the  school.  (5)  Officers — In  country  schools,  presi- 
dent and  clerk ;  in  town  schools,  president,  secretary,  and  treas- 
urer.— Contracts  — Warrants :  Contracts  must  be  in  writing, 
signed  by  president  and  teacher,  and  by  the  secretary  or  clerk 
when  the  teacher's  certificate  is  filed.  Certificate  must  be  in 
force  for  the  entire  time  the  contract  is  made.  Contract  must 
be  by  order  of  the  board. — Warrants :  Warrants  are  issued 
by  the  board  upon  the  teachers'  fund,  building  fund  and  inci- 
dental fund,  and  in  no  case  to  exceed  the  income  provided  for 
the  year  beginning  on  the  first  day  of  July  and  ending  on  the 
thirtieth  day  of  June. — Text-Books :  The  Missouri  school-book 
commission,  in  September,  1891,  contracted  with  publishers  to 
supply  text-books  in  the  common  branches  for  the  state  of  Mis- 
souri for  five  years.  A  penalty  is  imposed  upon  boards  of  edu- 
cation for  permitting  the  use  of  any  other  text-book  in  the  same 
branches  and  of  the  same  grade. — Teachers'  Contracts: 
Each  party  is  equally  bound  by  the  contract;  neither  party  to 
the  contract  can  dismiss  school  without  the  consent  of  the  other 
party.  The  rules  and  regulations  of  the  board,  if  presented  to 
the  teacher  when  the  contract  is  made,  become  part  of  the  con- 
tract. The  burning  of  the  school-house  renders  the  contract 


364  SYNOPSES   OF   SCHOOL    LAWS. 

void. — Teachers'  Certificates:  Three  grades  of  teachers'  cer- 
tificates in  the  common  branches  are  issued  by  the  county  insti- 
tute board  of  instructors  and  examiners  at  the  annual  monthly 
institutes.  Second-  and  third-grade  certificates  are  valid  in  the 
county  for  one  year  each ;  first-grade  certificates  are  valid  any- 
where in  the  state  for  three  years ;  state  certificates,  in  the  com- 
mon branches  and  in  the  twelve  higher  branches,  are  issued  by 
the  state  superintendent  upon  examination,  and  are  valid  in  the 
state  for  life. — Pupil  —  Punishment — Rules:  uThe  board 
shall  have  power  to  make  all  needful  rules  and  regulations  for 
the  organization,  grading  and  government  in  their  school  dis- 
trict—  said  rules  to  take  effect  when  a  copy  of  the  same,  duly 
signed  by  order  of  the  board,  is  deposited  with  the  district  clerk, 
whose  duty  it  shall  be  to  transmit,  forthwith,  a  copy  of  the  same 
to  the  teachers  employed  in  the  schools." — Powers  and  Du- 
ties of  Superintendents,  State  and  County:  It  is  the  duty 
•of  the  state  superintendent  to  examine  teachers  and  issue  state 
certificates ;  to  prepare  blanks  for  school  officers,  have  them 
printed  at  the  state's  expense,  and  annually  sent  out  to  county 
commissioners  for  distribution ;  to  annually  apportion  to  the 
counties  the  public  school  moneys  ;  to  make  an  annual  report ; 
to  interpret  the  school  law,  and  to  take  general  charge  of  school 
interests.  Only  two  counties  in  the  state  have  county  supervi- 
sion, which  has  been  adopted  by  a  vote  of  the  people  in  accord- 
ance with  the  local-option  law  on  the  subject ;  all  the  other 
counties  have  a  county  commissioner,  who  annually  distributes 
school  blanks,  decides  district  boundary  contests  when  appealed 
to  him,  makes  an  annual  report  to  the  state  superintendent,  in- 
terprets school  law,  and  is  a  member  of  the  county  institute 
board  of  examiners  and  instructors. 

MONTANA. 
(Compiled  by  Hon.  JOHN  GANNON,  State  Superintendent.) 

System :  State  superintendent,  county  superintendent,  dis- 
tricts, trustees,  clerk. — State  Superintendent  adopts  course 
of  study,  rules  and  regulations  for  schools,  uses  a  seal,  makes 


NEBRASKA. 


reports,  prepares  forms,  and  visits  schools. — County  Superin- 
tendent visits  schools  in  his  county,  distributes  school  informa- 
tion, reports  annually,  enforces  course  of  study,  enforces  rules 
and  regulations  in  examining  teachers,  keeps  record,  may  ap- 
point trustees  to  fill  vacancies,  and  ascertains  school  boundaries. 
— Trustees  may  employ  teachers  and  employes,  and  fix  com- 
pensation ;  enforce  rules  of  state  superintendent ;  enforce  course 
of  study  adopted  ;  provide  for  furniture  and  supplies ;  suspend 
or  expel  pupil ;  rent,  furnish,  repair,  and  insure  school-house ; 
build  or  remove  houses,  and  purchase  or  sell  lots  when  directed 
by  vote ;  hold  property ;  provide  books  for  poor ;  require 
pupils  to  have  books ;  exclude  sectarian  literature ;  require 
teacher  to  keep  register;  require  teacher  to  make  report,  ap- 
point district  clerk;  and  provide  evening  schools.  —  District 
Clerk  shall  provide  school  supplies,  keep  school -house  in  re- 
pair, and  keep  an  accurate  record.  Takes  annual  census  of  all 
children.  Separate  schools  for  colored  children. — Teacher's 
Certificates  from  county  superintendent  for  one,  two,  and 
three  years;  first  grade  three  years,  second  grade  two  years, 
third  grade  one  year.  Yalid  in  other  counties  on  being  regis- 
tered with  superintendent  and  indorsed.  Teachers  have  power 
over  pupils  to  and  from  school  and  on  the  play-ground ;  may 
suspend  pupils  for  cause.  No  school  officer  shall  be  interested, 
in  a  contract.  Compulsory  education  is  required. 

NEBRASKA. 

System:  State  superintendent,  county  superintendent,  dis- 
trict board,  district  officers,  board  of  education  of  cities.  State 
superintendent  may  organize  teachers'  normal  institute,  visit 
schools,  decide  disputed  points,  prescribe  forms,  print  school 
laws,  annually  report,  apportion  funds. —  County  Superin- 
tendent shall  examine  teachers,  may  indorse  certificates  from 
this  and  other  states,  may  grant  teachers'  certificates,  may  re- 
voke for  cause,  must  keep  record,  visit  schools,  advise  teach- 
ers.— Teacher's  Certificate:  First  grade  two  years,  second. 


.366  SYNOPSES   OF   SCHOOL   LAWS. 

grade  one  year,  third  grade  six  months  or  less.  Graduates 
of  colleges  and  universities,  having  certificate  of  first  grade, 
•teaching  three  years  in  high  school  in  this  state,  entitled  to 
professional  certificate.  State  superintendent  may  grant  profes- 
sional state  certificate.  State  normal  school  may  grant  certifi- 
cate. State  board  of  education  may  grant  to  students  from 
.state  normal  school  three-year  certificate  and  life  certificate,  but 
life  certificate  will  lapse  after  three  years'  failing  to  teach. 
District  Board  shall  grade  scholars,  adopt  course  of  study, 
make  rules,  suspend  or  expel  pupils  for  one  term.  No  officer 
shall  be  party  to  a  contract.  Board  of  education  of  cities  may 
appoint  committee  to  examine  teachers ;  may  grant  or  revoke 
-•certificates ;  and  no  one  shall  be  interested  in  a  contract.  Text- 
Books  :  School  district  required  to  purchase  text-books  neces- 
sary ;  contract  for  term  of  years,  not  to  exceed  five ;  pay  for 
books  out  of  district  fund ;  books  loaned  to  pupils  free.  This 
Includes  school  supplies. 

NEVADA. 

State  Superintendent  apportions  money,  makes  reports, 
prescribes  forms  and  blanks,  visits  each  county. — County  Su- 
perintendent apportions  money,  visits  schools,  supervises  the 
school  interests,  distributes  blanks,  keeps  reports,  makes  reports, 
presides  over  institutes,  appoints  trustees  where  voters  fail  to 
elect,  draws  warrants  for  school-books  for  poor  children,  and 
may  appoint  deputy. — Trustees  provide  maps,  furniture  and 
.appendages,  books  for  poor  children,  arrange  studies,  employ 
teachers,  suspend  or  expel  pupils,  apportion  fund,  establish  union 
;  school,  levy  tax  when  needed. — Teacher's  certificate :  County 
superintendent  appoints  two  others,  making  board  of  examiners, 
who  grant  certificates — first  grade  three  years,  second  grade  two 
years.  May  grant  a  county  certificate  on  presentation  of  a  life 
certificate  from  any  state,  or  a  California  state  normal  -  school 
diploma  if  not  over  five  years  old.  Those  holding  graduation 
-diploma  of  a  state  university  are  entitled  to  first-grade  certificate 


NEW  HAMPSHIRE.  367 


for  life. — Text -Books:  State  board  of  education  prescribes 
uniform  series  of  text-books,  not  to  be  changed  oftener  than 
once  in  four  years. 

NEW  HAMPSHIRE. 
(Compiled  by  Hon.  J.  W.  PATTERSON,  State  Superintendent.) 

System:  State  superintendent  of  public  instruction,  school 
districts,  common  and  town  school  board. — State  Superin- 
tendent appointed  by  governor  for  two  years ;  has  general 
supervision  and  control  of  the  educational  interests  of  the  state  ; 
prescribes  forms  and  blanks,  receives  and  distributes  documents 
and  reports,  annually  makes  report,  visits,  organizes,  superin- 
tends teachers'  institutes. — A  Town  is  a  single  district  for  school 
purposes,  provided  that  special  districts  previously  existing  may 
retain  their  organization  ;  they  are  corporations.  Districts  may 
hold  and  dispose  of  property,  may  raise  money  to  procure  site, 
to  build,  purchase,  rent,  repair,  and  remove  buildings,  to  insure, 
to  provide  shade  trees,  furniture,  books,  maps,  charts,  apparatus, 
and  pay  debts ;  may  hire  money  for  building  school-house,  not 
exceeding  four-fifths  of  the  cost,  payable  in  five  years ;  school 
district  may  establish  high  school,  or  two  or  more  districts  ad- 
joining may  establish  high  or  public  school.  A  district  may  con- 
tract with  an  academy  to  furnish  instruction  to  its  scholars.  A 
special  district  may  be  united  to  a  town  district.  Annual  dis- 
trict meeting  is  to  be  between  the  1st  of  March  and  the  20th  of 
April.  Officers  of  a  district,  when  not  otherwise  provided  for, 
shall  be :  Moderator,  clerk,  school  board  of  three  persons,  treas- 
urer, one  or  more  teachers,  and  such  other  officers  as  the  voters 
may  think  necessary.  District  may  locate  a  school-house  by 
vote,  or  by  a  committee  appointed.  No  committee  can  bind 
the  district  beyond  the  amount  of  money  voted.  Ten  or  more 
voters  aggrieved  with  location  of  a  school-house  may  appeal  to 
the  school  board ;  and  ten  or  more  voters  may  appeal  to  the 
county  commissioners  to  determine  the  location,  if  dissatisfied. 
Location  of  school-house  shall  not  be  changed  in  five  years, 
unless  appeal  is  prosecuted.  School-house  site  may  be  con- 


368  SYNOPSES  OF  SCHOOL  LAWS. 

demned. — School  Board  shall  select  and  hire  suitable  and 
competent  teachers;  may  prescribe  rules  for  attendance  upon 
schools ;  shall  purchase  text-books  and  other  supplies  required 
to  be  used  in  the  public  schools,  and  shall  loan  the  same  to  the 
pupils  free  of  charge. — Text-Books  or  series  of  text-books  on 
one  subject  shall  continue  in  use  for  five  years  after  introduc- 
tion, unless  price  is  unreasonably  raised.  School  board  may  an- 
nually change  one  text-book  or  one  series  of  text-books  which 
has  been  in  use  five  years.  Sectarian  or  political  books  cannot 
be  used.  Scholar  may  be  dismissed  by  the  school  board  for 
misconduct,  or  for  refusing  to  conform  to  the  reasonable  rules 
of  the  school,  not  to  attend  until  restored  by  the  board.  Dis- 
trict may  make  by-laws  concerning  compulsory  attendance,  and 
anyone  violating  such  by-laws  shall  be  punished.  District  may 
elect  or  appoint  superintendent  of  schools,  etc.  School  boards 
may  appoint  truant  officers,  who  shall  enforce  the  laws  and  regu- 
lations relating  to  truants  and  children  between  the  ages  of  six 
and  sixteen.  Teachers  of  public  schools  have  the  right  to  attend 
teachers'  institutes.  Parents  required  to  send  children  to  school 
between  the  ages  of  eight  and  sixteen.  The  normal  school  a  part 
of  the  educational  system  of  the  state. 

NEW  JERSEY. 
( Compiled  by  Hon.  A.  B.  POLAND,  State  Superintendent.) 

State  Board  of  Education  may  make  by-laws,  rules  and 
regulations,  appoint  county  superintendent,  decide  appeals  from 
state  superintendent.  —  State  Superintendent  has  supervi- 
sion of  schools,  apportionment  of  school-money,  prepares  blanks, 
decides  disputes,  suspends  or  revokes  teachers'  certificates  with 
consent  of  state  board. — County  Superintendent  examines 
and  licenses  teachers,  fixes  boundaries,  which  must  be  approved 
by  state  superintendent,  divides  and  unites  districts,  forms  new 
districts,  supervises  schools  in  the  county,  and  may  appoint 
trustees  on  failure  to  elect.  Appeals  from  county  superintend- 
ent are  to  the  state  superintendent.  —  District  Clerk  keeps 


NEW   JERSEY.  369 


building  in  repair,  provides  fuel,  obtains  blackboard  supplies. — 
Board  of  Trustees  may  employ  and  dismiss  teachers  and  em- 
ployes ;  make  rules  and  regulations ;  may,  under  vote,  erect 
building,  buy  land,  and  borrow  money.  They  may  rent,  fur- 
nish, and  repair  buildings ;  purchase  property ;  may  enforce 
regulations  of  the  state  board  ;  may  prescribe  uniform  text- 
books, suspend  or  expel  pupil,  provide  books,  call  special  meet- 
ings of  the  voters  of  the  district,  and  permit  school-house  to  be 
used  for  other  purposes.  —  Teacher's  Certificate  of  state 
board  good  for  any  part  of  the  state  as  long  as  the  certificate  is 
valid  by  the  terms  thereof,  for  that  grade.  County  board  of 
examiners  may  grant  certificates.  Highest  grade  entitles  the 
holder  to  teach  in  any  part  of  the  state ;  any  certificate  lower 
than  the  highest  entitles  the  holder  to  teach  in  that  county. 
State  Board  of  Examiners  may  grant  certificate.  Corporal 
punishment  cannot  be  inflicted  in  the  state.  Compulsory  edu- 
cation required  in  this  state.  —  State  Superintendent  of 
School  Census  appoints  census  enumerators  and  reports  to 
state  board  of  education  the  census  by  school  districts. 

The  board  of  trustees  of  the  State  Normal  School  and  the 
board  of  trustees  of  the  N.  J.  School  for  Deaf  Mutes  have  been 
abolished,  and  their  powers  and  duties  transferred  to  the  state 
board  of  education.  The  state  board  of  education  now  consists 
of  the  trustees  of  the  school  fund,  who  are  the  governor,  secre- 
tary of  state,  attorney  general,  comptroller,  president  of  the 
senate  and  the  speaker  of  the  assembly,  and  one  member  from 
each  congressional  district,  appointed  by  the  governor;  not 
more  than  four  of  whom  shall  belong  to  the  same  political 
party.  These  eight  members  are  appointed  for  five  years. 
School  districts  are  authorized  to  provide  free  text-books  for 
the  use  of  the  scholars,  and  to  pay  for  the  same  by  special  dis- 
trict tax ;  also  to  purchase  flags  for  the  school-houses,  the  money 
to  be  raised  in  the  same  manner.  All  poll  taxes  for  school  pur- 
poses are  abolished.  Any  county  raising  $100  for  the  purpose 
of  establishing  a  teachers'  library  may  receive  a  like  sum  from 

— 24 


370  SYNOPSES  OF   SCHOOL   LAWS. 

the  state,  and  yearly  thereafter  $50  from  the  state  by  raising  a 
like  sum.  All  school-houses  over  two  stories  in  height  are  re- 
quired to  have  outside  fire-escapes  and  some  means  of  extin- 
guishing fires.  District  clerks  who  refuse  or  neglect  to  perform 
their  duties  are  liable  to  a  fine  of  $20.  The  law  providing  for 
six  trustees  in  large  districts  is  abolished,  and  only  five  are  al- 
lowed. The  notice  stating  that  the  question  of  increasing  the 
number  of  trustees  from  three  to  five  can  only  be  posted  upon 
the  written  petition  of  one-fourth  of  the  legal  voters  of  the  dis- 
trict. All  orders  issued  by  district  trustees  bear  interest  from 
date,  when  the  township  collector  has  no  funds  to  pay  the  same  ; 
such  interest  to  cease  when  said  collector  gives  public  notice  of 
his  readiness  to  pay  the  orders.  The  proceeds  from  all  sales  of 
riparian  lands  now  go  to  the  state  fund  instead  of  the  school 
fund ;  the  latter  fund  remains  intact,  however,  and  the  interest 
can  only  be  used  as  heretofore.  Additional  free  scholarships 
in  the  State  Agricultural  College  are  established,  equal  to  one 
from  each  assembly  district,  the  expense  to  be  paid  from  the 
income  of  the  school  fund.  Applicants  are  examined  by  the 
county  and  city  superintendents,  on  the  first  Saturday  in  June ; 
the  questions  for  which  examination  are  prepared  by  the  author- 
ities of  the  college  and  approved  by  the  state  superintendent. 
The  age  for  admission  to  the  deaf-mute  school  has  been  raised 
from  five  to  eight  years. 

NEW  MEXICO. 
(Compiled  by  Hon.  AMADO  CHAVES,  Territorial  Superintendent.) 

Territorial  Superintendent  recommends  text-books,  pre- 
pares forms,  reports,  and  has  general  supervision. —  County  Su- 
perintendent, with  two  persons  appointed  by  the  judge  of  the 
district  court,  constitute  examining  board ;  issues  teachers'  cer- 
tificates of  three  grades. —  School  Directors  shall  provide 
sites,  school-houses  and  fuel,  pay  teachers  and  interest  on  school 
bonds,  and  may  levy  taxes.  May  provide  supplies  and  append- 
ages for  schools.  No  warrants  shall  be  issued  to  exceed  the 


NEW   YORK.  371 


levy  for  one  year.  They  may  employ  teachers,  and  shall  con- 
trol and  manage  the  schools. —  Compulsory  Education  is  re- 
quired. Books  for  poor  children  may  be  furnished.  Board  of 
education  may  adopt  uniform  Text-Books  and  contract  for  the 
same,  to  be  sold  to  the  counties  for  cash.  Shall  not  be  changed 
for  four  years. — Board  of  Education  in  cities  may  elect  their 
officers  except  treasurer,  make  their  rules,  organize  system  of 
graded  schools,  establish  high  school,  and  control  school  prop- 
erty. ISTo  sectarian  teaching  is  allowed. — Teacher  must  pass 
examination  on  the  effects  of  alcohol  on  the  system. 

NEW  YORK. 
(Compiled  by  Hon.  A.  S.  DRAPER,  State  Superintendent.) 

District  —  Organization — Alteration — Meetings :  In 

the  cities  the  schools  are  administered  as  provided  in  special  acts 
of  the  legislature.  In  the  country  the  school  district  is  the  unit 
of  organization,  and  may  have  one  trustee  or  three ;  in  union 
districts,  from  three  to  nine  trustees.  Districts  may  be  altered 
by  county  commissioners.  District  meetings  are  held  upon  call 
of  the  trustees. — Powers  of  District  Boards :  Their  powers 
are  somewhat  limited.  Aside  from  the  power  to  care  for  the 
property  and  employ  teachers,  they  must  ordinarily  get  authority 
from  district  meetings.  These  meetings  can  only  exercise  pow- 
ers conferred  upon  them  by  statute. — Contracts  —  Supplies 
— Warrants :  Answered  above ;  it  is  a  crime  for  a  trustee  to 
be  personally  interested  in  any  agreement  to  which  he  is  offi- 
cially a  party. — Text-Books:  Trustees  in  the  union  districts 
and  meetings  of  the  electors  in  the  smaller  ones  may  designate 
text-books.  Once  designated,  text-books  cannot  be  changed  for 
five  years.  There  is  no  state  or  county  uniformity  in  text-books. 
— Teachers'  Contracts :  Teachers  must  be  employed  for  fixed 
terms  of  not  less  than  ten  weeks  in  duration.  They  cannot  be 
dismissed  in  the  course  of  a  term  of  employment  except  for  a 
cause  approved  by  the  state  superintendent.  They  must  be  paid 
as  often  as  at  the  end  of  each  calendar  month.  When  a  contract 


372  SYNOPSES  OF   SCHOOL   LAWS. 

is  made,  the  trustees  must  give  the  teacher  a  written  memoran- 
dum setting  forth  its  terms. — Teachers'  Certificates:  These 
are  only  issued  upon  written  examinations  supplied  by  the  state 
superintendent,  and  under  regulations  prescribed  by  him. — Pu- 
pils—  Punishment — Rules:  The  school  age  is  from  five 
to  twenty-one.  Corporal  punishment  is  not  prohibited,  but  has 
practically  ceased.  Pupils  must  submit  to  the  discipline  of  the 
school  or  be  debarred  its  privileges. — Powers  of  Superin- 
tendent, State  and  County:  The  powers  of  the  state  super- 
intendent probably  exceed  those  of  any  other  similar  officer  in 
the  country.  He  is  a  judicial  officer  so  far  as  all  school  contro- 
versies are  concerned,  and  his  determination  of  them  is  final,  and 
cannot  be  called  in  question  by  the  courts.  He  prescribes  the 
regulations  for  the  government  of  the  eleven  normal  schools 
and  the  one  hundred  and  twenty  teachers'  training  classes,  the 
school  libraries,  etc.  The  institute  conductors  are  appointed  and 
directed  by  him.  He  regulates  the  proceedings  of  the  county 
commissioners.  The  last-named  officers  have  general  super- 
visory powers.  They  may  require  new  school-houses  to  be 
built,  may  require  additional  furniture  to  be  purchased,  may 
revoke  the  certificates  of  teachers,  etc.  In  short,  they  may  do 
almost  anything  which  experience  has  shown  to  be  necessary  to 
good  school  administration. 

NORTH  CAROLINA. 

System:  State  board  education.  State  board  recommend 
text-books  for  term  of  three  years.  County  board  to  supervise 
their  introduction.  No  sectarian  or  political  books  are  to  be 
used.  Price  of  books  recommended  by  state  board  education. 
— Superintendent  of  Public  Instruction  has  general  super- 
visory power.  Justices  and  county  commissioners  elect  County 
Board  of  Education  of  three  persons.  The  county  board  set- 
tles controversies,  decides  boundaries,  prosecutes  suits  by  the 
instruction  of  state  superintendent.  Commissioners  and  jus- 
tices elect  county  superintendent ;  and  county  board  and  county 


NORTH   DAKOTA.  373 


commissioners  may  remove  county  superintendent.  County 
board  may  lay  off  the  counties  into  districts.  Separate  schools 
for  white  and  colored.  Text-books  for  primary  and  intermedi- 
ate courses,  one-fourth  to  consideration  of  alcohol  and  narcotics, 
and  high  grades  twenty  pages. — Teacher  must  pass  an  exam- 
ination on  these  subjects  before  obtaining  a  certificate. — County 
Superintendent  may  issue  certificate :  average  of  90  per  cent., 
first-grade  certificate ;  80  per  cent.,  second-grade ;  70  per  cent., 
third-grade,  valid  for  one  year  in  county  where  issued.  County 
superintendent  may  suspend  teacher  for  cause,  visit  schools,  and 
superintend  schools. — The  School  Committee  of  each  district 
shall  purchase,  hold,  sell  and  transfer  sites;  shall  prosecute 
suits.  School  committee  may  employ  and  dismiss  teachers  and 
fix  pay ;  shall  have  care  of  school-houses ;  receive  site  by  do- 
nation ;  may  condemn  lands  for  site.  Teachers  may  dismiss 
pupils  for  willful  and  persistent  violation  of  the  rules  of  school. 
School  committee  may  contract  with  teacher  of  private  school 
having  first-grade  certificate.  It  is  a  misdemeanor  to  willfully 
disturb  any  school.  Partial  third-grade  certificates  are  abol- 
ished. For  cause,  the  county  superintendent  may  revoke  a 
teacher's  certificate.  He  may,  for  cause,  discontinue  school. 
Conductor  of  county  institute  with  the  county  superintendent 
may  grant  first-grade  certificates  for  three  years.  Applicant 
must  have  studied  books  on  school  economy,  and  theory  and 
practice  of  teaching.  At  the  close  of  teachers'  county  institute 
first-  and  second-grade  certificates  shall  be  issued.  They  may 
be  revoked  for  cause. 

NORTH  DAKOTA. 
(Compiled  by  Hon.  JOHN  OGDEN,  State  Superintendent.) 

System:  State  superintendent  of  public  instruction,  county 
superintendent  of  schools,  district  school  boards. — State  Su- 
perintendent: General  supervisory  power;  prepare  lists  of 
books  for  school  libraries ;  prepare  and  furnish  all  blank  forms 
needed ;  prepare  questions  and  prescribe  regulations  for  county 


374  SYNOPSES   OF   SCHOOL   LAWS. 

examinations;  issue  state  certificate  upon  examination;  pre- 
scribe courses  of  study  for  all  public  schools  and  normal  schools  ; 
provide  regulations  for  institute,  appoint  conductors  and  pre- 
scribe course  of  instruction;  prescribe  course  of  reading  for 
reading-circles ;  convene  and  confer  with  county  superintend- 
ents; decide  appeals;  apportion  state  tuition  fund. — County 
Superintendent:  Supervisory  power  in  counties;  advise 
teachers  and  record  visits  ;  convene  teachers  in  reading-circles ; 
meet  with  school  officers ;  decide  inatters  in  controversy ; 
carry  out  instructions  of  state  superintendent ;  conduct  exami- 
nations; hold  institutes. — District  School  Boards:  Three 
directors,  elected,  one  each  year;  treasurer  elected  biennially, 
not  a  member  of  the  board ;  clerk  appointed  by  the  board,  not 
a  member  of  the  board ;  manage  schools  in  district ;  control 
property ;  establish  schools ;  purchase  library ;  employ  teach- 
ers ;  levy  taxes ;  make  enumeration ;  no  officer  shall  be  inter- 
ested in  any  contract  or  scHbol-book  supplies.  —  School 
Districts:  Based  upon  township  plan  as  to  area,  and  upon 
district  plan  as  to  government ;  compulsory  education  ;  special 
districts  provided  for  cities,  towns  and  villages. — Teachers: 
No  person  shall  be  employed  who  has  not  a  valid  certificate ; 
county  superintendent  issues  three  grades  according  to  ratio  of 
correct  answers  —  first  grade  three  years,  second  grade  two 
years,  third  grade  one  year,  valid  in  county  where  issued ;  first 
grade  valid  in  any  county  when  indorsed  by  the  county  superin- 
tendent; first-grade  certificate  may  be  renewed  once  without 
examination.  State  certificates,  professional  for  life  and  normal 
for  five  years,  valid  throughout  the  state,  issued  by  state  super- 
intendent. Shall  attend  institutes ;  shall  pursue  reading-circle 
course ;  shall  teach  physiology  and  hygiene,  including  temper- 
ance teaching;  may  suspend  pupil. — School  Funds:  State 
tuition  fund  apportioned  to  all  districts  on  basis  of  enumeration 
of  children  over  six  and  under  twenty  years  of  age ;  consists  of 
two-mill  general  tax,  one  dollar  and  a  half  poll  tax,  interest  on 
invested  permanent  school  fund,  rental  of  school  lands,  net  pro- 


OHIO.  375 


ceeds  of  fines,  penalties  and  forfeitures ;    special  fund  raised  by 
district  local  taxation  ;  districts  may  issue  bonds. 

OHIO. 

( Compiled  by  Hon.  O.  T.  COBSON,  State  Superintendent.) 

Board  of  Education  for  township  district,  divided  into  sub- 
districts,  consists  of  township  clerk  and  one  director  for  three 
years,  from  each  sub-district.  The  clerk  of  the  township  is  ex 
officio  clerk  of  the  board,  but  has  no  vote  except  in  case  of  a 
tie.  Notice  of  election  to  be  given  for  six  days  in  three  or  more 
places.  Board  of  education  shall  hold  regular  meetings  quar- 
terly and  from  time  to  time  specially. — District  Board  of  ed- 
ucation in  a  district  may  build,  enlarge,  repair  and  furnish 
school-houses,  purchase  or  sell  sites,  rent  rooms  and  provide  ap- 
paratus.— Township  Board  education  shall  furnish  fuel,  build 
and  repair  fences,  plant  shade  trees,  and  provide  other  conveni- 
ences. Questions  of  change  of  site,  or  erection  of  new  building, 
are  determined  by  the  township  board  of  education. — Pupils 
may  be  suspended  by  superintendent  or  teacher  only  until  time 
to  convene  the  board  of  education ;  no  pupil  expelled  except 
by  two-thirds  vote  of  the  board  of  directors,  and  not  until  the 
parent  has  had  an  opportunity  of  being  heard,  and  no  pupil 
shall  be  suspended  or  expelled  beyond  the  current  term.  The 
board  of  education  of  the  district  may  appoint  superintendent, 
suspend  superintendent,  hire  teachers  and  employes,  and  fix 
salary.  No  contract  can  be  made  for  a  longer  time  than  that 
for  which  a  member  of  the  board  is  elected.  Any  appointee 
may  be  dismissed  for  cause.  No  teacher,  in  township  districts, 
can  be  employed  prior  to  the  annual  election  for  school  officers 
in  April,  for  a  term  to  commence  after  the  current  school  year. 
School-book  law  of  1891  provides  that  when  the  state  school 
board  has  accepted  proposals  and  adopted  Text-Books  the 
school  commissioner  shall  make  out  a  list.  Board  of  education 
shall  purchase  books  and  sell  to  scholars  at  not  exceeding  10 
per  cent,  advance. — Compulsory  Education  is  required.— 


376  SYNOPSES   OF   SCHOOL   LAWS. 

Board  of  Examiners  to  be  appointed  in  city  district  of  the 
first  class  are  to  be  appointed  by  board  of  education  of  district. 
County  board  of  examiners  is  three  persons,  appointed  by  pro- 
bate judge.  County  board  of  examiners  may  grant  certificates 
for  one,  two  and  three  years  in  the  county,  except  in  city  and 
village  districts,  which  have  board  of  examiners.  Examiners 
may  grant  certificates  for  five  years  to  those  who  have  been 
three  years  engaged  in  teaching,  twelve  months  in  one  place. 
Examiners  may  revoke  certificate  for  cause.  Teacher  who  has 
not  a  certificate,  and  who  is  not  qualified  to  teach  physiology 
and  hygiene,  cannot  be  employed.  Examiners  in  city  district 
may  examine  teachers.  Board  may  grant  certificates  for  one, 
two  and  three  years.  Teachers  must  give  instruction  on  the 
effects  of  alcohol.  State  board  of  examiners  may  issue  life  cer- 
tificates. 

OREGON. 

(Compiled  by  Hon.  E.  B.  MCELROY,  State  Superintendent.) 

Territorial  Divisions,  consisting  of  state,  county,  cities 
and  towns,  school  districts. — Officers :  State  Board  of  Edu- 
cation—  Governor,  secretary  of  state,  and  state  superintendent  of 
public  instruction.  Powers,  etc.:  Members  hold  office  by  virtue 
of  elective  official  position ;  hold  semi-annual  meetings  at  the 
state  capitol  on  the  first  Monday  in  January  and  July ;  sit  as  a 
board  of  examination  at  their  semi-annual  meetings ;  may  estab- 
lish a  state  board  of  examination ;  have  power  to  grant  state 
certificates  and  diplomas;  prescribe  rules  and  regulations  for 
the  general  government  of  public  schools  ;  have  power  to  make 
decisions  on  appeals  and  other  powers  of  general  and  special 
supervision ;  serve  for  a  period  of  four  years.  State  superin- 
tendent of  public  instruction,  county  superintendents,  city  super- 
intendents, county  board  of  examiners,  directors  and  clerks  of 
city  and  town  districts,  directors  and  clerks  of  school  districts 
in  general. — Institutions  in  general :  Graded  schools  in  cities 
and  towns,  normal  training-schools,  ungraded  district  schools, 
city  institutes  for  teachers  under  supervision  of  city  superin- 


OREGON.  377 


tendents,  county  and  local  institutes  for  teachers  under  super- 
vision  of    county   superintendents.  —  Higher   and    Special 
Institutions  of  learning :  State  University,  at  Eugene  City ; 
State  Agricultural  College,  at  Corvallis ;  State  Normal  Schools, 
at  Ashland,  Drain,  Monmouth,  and  Weston ;    School  for  the 
Blind,  at  Salem  ;  School  for  Deaf  and  Dumb,  at  Salem ;  Orphans' 
Home,  at  Salem ;  Orphans'  Home,  at  Portland. — State  Divi- 
sions:   Establish  schools;    provide  for  a  uniform  system  of 
public   instruction,   text-books,  taxes,   etc.;    provide   for   state 
board  of  education ;  elect  state  superintendent  of  public  instruc- 
tion ;  establish  benevolent  and  special  schools ;  provide  for  the 
management  of  school  funds ;    establish  universities,  colleges, 
and  professional  schools. — County  Divisions :  Elect  a  county 
superintendent;     secure    uniformity    in    text-books    and    other 
features  of  school  work  under  the  general  laws  of  the  state. — 
City  Divisions — Cities  of  10,000  Inhabitants:   Have   local 
and  general  control  of  schools ;  employ   city  superintendents, 
teachers,  janitors,  etc.,  and  fix  their  compensation ;  prescribe 
course  of  study ;  make  rules  and  regulations  for  government 
of  districts;    lease    and   build    school -houses,    buy  and   lease 
lands,  furnish   apparatus,  furniture,   levy  taxes,   make    annual 
printed  report,  fix  rates   on   tuition,  etc.,  for  school  purposes. 
—School  District  Divisions:    Districts  are  formed  in  the 
villages,  towns  and  country  for  the  purpose  of  extending,  localiz- 
ing and  permanently  establishing  educational  facilities ;  school 
districts  are  public  corporations ;  school  districts  are  organized 
under  the  provisions  of  the  general  statute. — State  Superin- 
tendent of  Public  Instruction :   Serves  for  a  period  of  four 
years;  is  elected    by  the  people;    has  general   supervision    of 
public  schools;  makes   biennial   reports  to  the  legislative  as- 
sembly ;  is  secretary  of  the  state  board  of  education ;  is  author- 
ized to  hold  meetings  of  county  superintendents;  annotates  and 
compiles  all  school  laws  ordered  published ;  issues  letters  and 
circulars  of  information,  explanation  and  construction  to  county 
and  district  school  officers ;  holds  biennial  institutes  for  teachers 


378  SYNOPSES  OF   SCHOOL  LAWS. 

in  each  judicial  district ;  attends  county  institutes  when  prac- 
ticable ;  holds  a  state  teachers'  association  annually ;  makes  de- 
cisions on  appeal  from  school  officers,  etc. ;  prepares  uniform 
series  of  blanks,  registers,  forms,  rules  and  regulations  for  use 
of  public  school  officers  and  teachers ;  visits  educational  institu- 
tions of  the  state,  and  secures  statistics  of  same  when  possible ; 
issues,  quarterly,  uniform  series  of  questions  to  the  several 
county  superintendents  for  examination  of  teachers;  visits,  as 
far  as  practicable,  every  county  in  the  state  annually  in  the  in- 
terests of  education. — County  Board  of  Examiners :  Is  com- 
posed of  the  county  superintendent  and  two  competent  persons. 
They  hold  public  examinations  quarterly,  and  issue  three  grades 
of  county  certificates — first,  second,  and  third  —  that  continue 
in  force  three  years,  two  years,  and  one  year,  respectively;  they 
may  sit  as  a  board  of  appeals,  and  may  consider  all  questions 
that  will  advance  the  best  interests  of  the  county  public  schools. 
— County  Superintendent :  Serves  two  years ;  is  elected  by 
the  people;  establishes  school  districts;  makes  apportionment 
of  school  funds;  makes  an  annual  financial  report  to  county 
court;  makes  an  annual  report  to  superintendent  of  pub- 
lic instruction ;  examines  teachers,  and  issues  certificates ; 
may  revoke  certificates  obtained  by  fraud,  etc. ;  is  chair- 
man of  board  of  county  examiners ;  holds  an  annual  insti- 
tute for  the  teachers  under  his  supervision ;  visits  schools 
annually ;  holds  local  institutes ;  hears,  examines  and  de- 
cides appeals  from  district  officers,  teachers,  and  others;  re- 
ceives reports  from  district  officers  and  teachers ;  may  arrange 
a  course  of  study  for  county  schools ;  has  an  advisory  power  in 
the  location  of  school-houses,  selection  of  teachers,  etc. ;  is  ex 
officio  chairman  of  board  of  arbitrators  for  division  of  school 
property;  votes  for  state  uniform  series  of  school-books  once 
in  six  years. — District  Directors:  There  are  three  for  each 
district ;  they  are  elected  by  the  legal  voters  in  the  district,  and 
serve  for  three  years ;  they  employ  teachers  and  assist  them  in 
the  government  of  the  school ;  they  audit  all  claims  against  the 


OREGON.  379- 


district  and  draw  all  orders ;  they  locate,  establish  and  provide 
schools;  they  may  levy  taxes  for  buildings,  furniture,  school- 
sites,  apparatus,  etc. ;  examine  and  correct  assessment  rolls ;. 
they  may  levy  rate-bills  under  conditions;  they  have  entire 
control  of  the  district  schools,  within  certain  limits ;  they  must 
enter  into  a  written  contract  in  employing  teachers ;  they  have 
power  to  locate  school-houses ;  they  must  prosecute  any  person 
for  willfully  injuring  school  property ;  they  issue  calls  for  reg- 
ular and  special  meetings ;  they  can  dismiss  teachers  only  for 
good  cause  shown,  and  the  teacher  may  take  an  appeal ;  two- 
directors  constitute  a  quorum. — District  Clerks :  There  is  one 
for  each  district ;  they  are  elected  by  the  people,  and  serve  one 
year ;  they  must  give  bonds  ;  the  clerk  is  custodian  of  all  school 
funds ;  the  clerk  is  ex  qfficio  treasurer,  and  pays  all  warrants ; 
they  make  out  assessment  rolls  and  collect  taxes ;  they  make 
an  annual  census  of  the  district ;  they  must  keep  correct  ac- 
counts of  all  meetings  and  other  business;  they  must  make 
annual  reports  to  the  county  superintendent ;  they  receive,  ex- 
amine, approve  and  file  teachers'  reports. — District  Organi- 
zation :  County  superintendents  organize  school  districts,  upon, 
petition  from  legal  voters.  Upon  notice  by  county  superin- 
tendent, of  organization,  three  notices  are  posted  in  district, 
calling  for  meeting  of  citizens  in  ten  days  to  organize ;  meet- 
ing organizes  by  the  election  of  three  school  directors  and  one 
clerk. — Text-Books:  A  uniform  state  series  of  school -book& 
adopted  every  six  years  by  vote  of  county  superintendents  and 
members  state  board  of  examiners. — Contracts  are  made  with 
teachers  by  boards  of  directors  for  specified  terms  of  teaching 
and  salary,  etc. — Rules  and  Regulations  for  the  government 
of  public  schools  and  school  officers  are  made  by  the  state  board 
of  education.  These  rules  include  and  govern  under  the  fol- 
lowing heads:  Appeals,  Teachers'  Examinations,  Pupils,  and 
Classification  of  Text-Books. 


.380  SYNOPSES   OF   SCHOOL    LAWS. 

PENNSYLVANIA.       . 

System:  Directors  and  controllers,  state  superintendent, 
county  superintendent,  city,  borough  and  township  superintend- 
ents, districts,  cities,  boroughs,  and  townships,  and  independent 
districts.  —  State  Superintendent  decides  disputes  between 
boards  of  directors,  gives  advice,  makes  annual  report,  removes 
county  superintendent  for  cause,  prescribes  forms,  and  generally 
superintends.  —  County  Superintendent  shall  visit  school, 
supervise  county  schools,  grant  Teachers'  Certificates  and 
revoke  for  cause,  giving  ten  days'  notice  to  the  holder  and  to 
the  directors  and  controllers  of  the  district.  County,  city  and 
borough  superintendents  shall  issue  two  grades  of  certificates ; 
one  provisional,  good  for  one  year  in  the  locality  where  issued ; 
the  other  professional,  good  in  the  locality  during  the  term  of 
the  officer  issuing  it  and  one  year  thereafter. — State  Superin- 
tendent may  grant  permanent  certificate  on  recommendation 
of  board  of  directors,  committee,  and  superintendent;  and  it 
shall  be  valid  in  the  county  where  issued,  and  good  for  one 
year  in  any  other  county,  without  re-examination.  It  may  be 
revoked  for  cause.  Certificate  of  scholarship  and  teacher's 
state  certificate  may  be  granted  by  state  normal  school.  Sec- 
tarian works  may  be  excluded;  scriptures  should  be  read  in 
school.  —  Books  may  be  purchased  and  supplied  free  of  cost 
for  use  in  the  public  schools.  Not  to  be  changed  oftener  than 
once  in  three  years.  Directors  not  to  furnish  supplies ;  school 
officers  not  to  be  agent  for  books.  —  School  Directors:  1. 
Organize  within  ten  days  after  the  first  Monday  in  June.  2. 
Establish  a  sufficient  number  of  schools  for  all  the  children 
-above  the  age  of  six  years  that  may  apply  for  admission.  At- 
tendance is  voluntary.  3.  Fill  vacancies  in  the  board.  4. 
Levy  tax  for  school  and  building  purposes  and  appoint  col- 
lector. 5.  Select  sites  for  and  erect  school -houses.  6.  Fix 
length  of  school  term,  which  cannot  be  less  than  five  nor  more 
than  ten  months.  7.  Appoint  teachers  and  fix  their  salaries. 
S.  Grade  the  schools  when  necessary.  9.  Direct  what  branches 


KHODE  ISLAND.  381' 


shall  be  taught.  10.  Decide  what  text -books  shall  be  used,, 
which,  when  adopted,  can  be  changed  only  once  in  three  years. 
11.  Yisit  the  schools.  12.  May  dismiss  teachers  for  sufficient 
cause.  13.  Elect  superintendents.  14.  Make  annual  reports 
to  superintendent.  15.  Pay  all  expenses  by  drafts  on  the  treas- 
urer. 16.  Publish  annually  a  financial  statement. 

KHODE  ISLAND. 

(Compiled  by  Hon.  THOS.  B.  STOCKWELL,  State  Commissioner  of  Public 

Schools.) 

Two  of  State  Board  of  Education  are  elected  annually, 
for  three  years. —  Commissioner  of  Public  Schools  elected 
annually.  He  shall  recommend,  and,  with  the  board  of  educa- 
tion, bring  about  uniformity  of  text-books.  He  is  to  advise  with 
school  officers,  visit  and  inspect  schools,  conduct  institutes,  ap- 
portion school-moneys,  and  act  as  executive  officer  of  the  state 
board  of  education. — Towns  may  maintain  schools  with  or 
without  districts.  Towns  may  be  divided  into  districts.  Towns 
may  provide  for  school-houses  for  districts.  School  committee 
shall  be  elected  for  three  years,  one-third  each  year.  Its  school 
committee  shall  appoint  a  superintendent  for  schools  of  town. — 
District  may  sue  and  be  sued;  may  purchase  and  hold  prop- 
erty ;  may  build,  purchase,  hold  and  repair  school-houses,  and 
supply  same  with  blackboards,  maps,  furniture  and  other  neces- 
sary and  useful  appendages,  and  may  insure  its  property.  Dis- 
tricts annually  elect  moderator,  clerk,  treasurer,  collector,  and. 
one  or  three  trustees,  and  may  fill  vacancies.  If  district  neglect 
to  organize,  or  fail  for  six  months  to  employ  teacher,  the  school 
committee  may  provide  a  teacher.  The  district  may  devolve  its 
powers  on  the  school  committee. — Meeting  annually,  April  in 
each  year.  Special  meeting  may  be  called  on  request  of  five 
electors,  stating  the  object;  and  if  trustees  neglect,  the  school 
committee  may  call  it.  Notice  of  annual  meeting  given  by  pub- 
lishing in  a  newspaper  of  district,  or  by  publishing  in  two  or 
more  public  places  five  days.  No  person  can  vote  on  tax  un- 
less liable  to  pay  tax.  Joint  school  district  may  be  established. 


382  SYNOPSES   OF   SCHOOL   LAWS. 

by  school  committees  of  the  two  towns.  The  joint  district  has 
-all  the  powers  of  a  single  school  district,  and  is  under  the  super- 
vision and  regulations  of  school  committee  of  the  town  in  which 
located. — Trustees  of  school  district  have  care  of  property; 
shall  employ  one  or  more  teachers  for  fifty  pupils  in  average 
daily  attendance ;  provide  school-rooms  and  fuel ;  visit  twice  a 
term  and  see  that  pupils  have  books,  and  if  not  provided  shall 
furnish  them  at  expense  of  district.  School  committee  of  town 
meet  at  least  four  times  a  year ;  determine  and  alter  districts ; 
locate  school-houses ;  examine  teachers  for  the  town ;  visit  twice 
^  term ;  make  rules  for  attendance,  also  classification  of  pupils, 
text-books,  instruction  and  discipline  under  direction  of  commis- 
sioner of  public  schools.  May  suspend  incorrigible  pupils. 
'Change  of  Text-Books  in  any  town  may  be  had  by  two-thirds 
vote  of  school  committee ;  not  more  than  once  in  three  years, 
unless  the  board  of  education  consents. — Teacher's  Certifi- 
cate given  by  school  committee  of  town,  or  by  some  one  ap- 
pointed by  said  committee,  or  by  trustees  of  normal  school ;  if 
signed  by  the  committee,  is  good  in  the  town  for  one  year,  or 
for  such  portion  of  time  as  specified  therein. —  School  Commit- 
tee may  dismiss  teacher  refusing  to  conform  to  their  regula- 
tions.— Appeals  from  school  committee,  district  meeting,  or 
trustees,  are  to  the  commissioner  of  public  schools. —  Compul- 
sory Education:  Children  from  seven  to  fifteen  years  of  age 
must  attend  twelve  weeks  some  public  school,  unless  the  private 
school  is  approved  by  the  committee,  where  teaching  is  in  Eng- 
lish. Religious  school  may  be  approved.  No  child  between 
ten  and  fifteen  years  shall  be  employed  in  any  factory  or  mer- 
cantile house  except  in  vacation,  unless  he  has  attended  school 
at  least  twelve  weeks  in  the  year  preceding  his  employment. 

SOUTH  CAROLINA. 
(Compiled  by  Hon.  W.  D.  MAYFIELD,  State  Superintendent) 

School  Officers:  State  superintendent  of  education,  elected 
.by  the  people  for  two  years ;  four  members  of  the  state  board 


SOUTH   CAROLINA.  383 


of  examiners,  appointed  by  the  governor  for  two  years ;  county 
school  commissioners,  one  for  each  county,  elected  by  the  people 
for  two  years ;  two  members  of  the  county  board  of  examiners, 
appointed  by  the  state  board  of  examiners  for  two  years ;  three 
school  trustees  for  each  school  district,  appointed  by  the  county 
board  of  examiners  for  two  years. — Powers  and  duties :  The 
State  Superintendent — To  give  bond  and  take  oath ;  has  gen- 
eral supervision  ;  to  visit  and  report  visits ;  to  secure  uniformity 
in  the  use  of  text-books ;  to  prepare,  have  printed  and  distribute 
blanks,  blank  books,  instructions,  and  school  law ;  to  collect 
school-books,  apparatus,  maps  and  charts;  to  certify  copies  of 
papers  and  official  acts  under  official  seal ;  to  hold  school  prop- 
erty in  trust ;  to  prescribe  regulations  to  enforce  statutes ; 
school  commissioners  to  conform  to  his  instructions;  county 
treasurer  to  report  to  annually ;  is  ex  officio  a  member  of  the 
boards  of  trustees  of  all  state  educational  institutions ;  to  report 
annually  the  condition  of  the  state  educationally — the  amount 
of  money  spent  and  for  what  purpose,  the  number  and  condition 
of  school-houses  and  property,  the  number  in  attendance  in  the 
public  schools  for  the  year  and  what  studying,  by  sex  and  race, 
etc.  State  Board  of  Examiners — The  state  superintendent  is 
ex  officio  a  member  and  chairman,  and  he  with  the  four  ap- 
pointive members  constitute  the  board,  and  his  clerk  is  the  sec- 
retary of  the  board  and  keeper  of  its  records ;  are  an  advisory, 
appellate  and  review  body ;  all  appeals  to  be  made  through  the 
county  board  of  examiners,  in  writing ;  to  adopt  rules  and  regu- 
lations for  its  own  government ;  to  prescribe  and  enforce  rules 
for  the  examination  of  teachers ;  to  prescribe  a  standard  of  pro- 
ficiency before  county  board  of  examiners,  which  will  entitle 
persons  examined  by  such  boards  to  certificates  to  teach ;  to 
prescribe  and  enforce  the  course  of  study  in  the  free  public 
schools ;  to  prescribe  and  enforce,  as  far  as  practicable,  the  use 
of  a  uniform  series  of  text-books  in  the  public  schools,  except  in , 
the  city  of  Charleston  —  a  series  adopted  not  to  be  changed 
within  five  years,  without  permission  of  the  general  assembly ; 


384  SYNOPSES  OF  SCHOOL  LAWS. 

to  grant  state  teachers'  certificates  on  examination,  on  recom- 
mendation of  institute  faculties,  and  diplomas  from  state  char- 
tered institutions ;  to  meet  regularly  in  April  and  October  of 
each  year,  and  at  any  other  time  upon  the  call  of  the  chairman 
or  request  of  a  majority  of  the  board ;  (a  majority  of  the  board 
constitutes  a  quorum ; )  to  appoint  members  of  county  boards  of 
examiners ;  and  to  use  the  seal  of  the  state  superintendent. 
County  School  Commissioners — One  for  each  county,  elected 
every  two  years ;  governor  appoints  in  case  of  vacancy ;  takes 
oath ;  gives  bond  in  the  sum  of  $2,000  ;  to  visit  schools,  note 
course  of  study,  condition  of  school-houses,  etc.;  to  aid  in  im- 
provement of  teachers  and  encourage  associations;  to  report 
annually  to  the  state  superintendent  the  educational  condition 
and  standing  of  his  county,  giving  all  required  statistics ;  to 
report  annually  to  the  presiding  judge;  to  be  paid  a  salary 
and  traveling  expenses ;  to  keep  and  use  a  seal ;  his  consent 
necessary  for  the  sale  of  school  property ;  teachers  to  furnish 
him  with  statistics ;  must  countersign  teachers'  pay  certificates 
before  they  can  be  paid ;  to  be  provided  with  an  office,  etc. ;  to 
administer  oaths,  free  of  charge,  touching  all  school  matters  ; 
to  report  to  his  county  treasurer  by  Feb.  1st  the  appropriation 
of  the  school  fund  of  his  county,  by  school  districts,  based  on 
the  average  attendance  of  the  districts,  except  the  poll  tax, 
which  remains  in  the  district  where  collected ;  not  to  be  inter- 
ested in  school  claims,  under  penalty  ;  county  treasurer  to  report 
to  monthly ;  to  report  quarterly  to  the  comptroller  general  the 
names  and  amounts  of  all  claims  approved  by  him  for  the  quar- 
ter, and  to  attend  on  the  annual  settlements  of  the  comptroller 
general  with  the  treasurer. — The  County  Board  of  Examiners  : 
The  county  school  commissioner  is  ex  officio  a  member  and 
chairman,  and  he  and  the  two  appointive  members  consti- 
tute the  board ;  are  an  advisory  and  appellate  body ;  to  hear 
and  determine  all  local  controversies,  with  right  of  appeal  from 
to  state  board ;  may  recommend  the  purchase  of  school  appara- 
tus ;  to  appropriate  funds  for  the  holding  of  teachers'  institutes  ; 


SOUTH   CAROLINA.  385 


to  see  that  the  branches  are  taught ;  to  hold  examinations  of 
teachers,  under  regulations  of  the  state  board,  and  grant  teach- 
ers' certificates  to  those  found  qualified  on  examination,  and  on 
diplomas  from  state  chartered  institutions,  good  for  two  years  ; 
to  meet  in  April  and  October  of  each  year  and  at  such  other 
times  as  the  chairman  or  a  majority  of  its  members  may  call  a 
meeting ;  to  keep  a  record  of  its  acts ;  may  change  school  dis- 
tricts or  form  new  ones  for  convenience  or  necessity ;  to  limit 
school  term  to  school  fund ;  to  fix  pay  of  school  commissioner, 
county  auditor  acting  in  the  place  of  school  commissioner  for 
this  purpose ;  former  to  regulate  teachers'  salaries ;  to  appoint 
school  trustees  and  have  general  jurisdiction.  School  Trustees 
— Board  consists  of  three,  appointed  by  the  county  board  of 
examiners ;  hold  school  property  in  trust ;  give  bond  in  certain 
cases ;  may  purchase  school  apparatus  when  recommended  by 
the  county  board ;  to  see  that  the  branches  are  taught ;  meet 
at  the  beginning  of  the  scholastic  year,  and  as  often  as  may  be 
necessary ;  have  general  jurisdiction,  subject  to  the  county 
board ;  to  provide  sites  and  school-houses ;  employ  teachers 
having  certificates,  and  fix  their  salaries,  subject  to  the  county 
board,  and  discharge  them ;  call  public  meetings ;  sell  school 
property,  with  school  commissioner's  consent,  and  report ;  to 
transfer  pupils;  cannot  go  in  debt;  teachers  to  report  to 
monthly  ;  must  not  teach  ;  at  least  two  must  sign  every  warrant, 
pay  certificate,  for  any  purpose,  on  the  county  treasurer  against 
the  school  fund,  which  must  be  countersigned  by  the  county 
school  commissioner  before  it  can  be  paid ;  to  administer  oaths,, 
free  of  charge,  touching  school  matters ;  all  claims  to  be  sworn 
to  by  the  payee  before  approval  by  them ;  not  to  buy  or  be 
interested  in  school  claims ;  to  report  list  of  polls  to  auditor ;, 
auditor  to  report  list  of  polls  to  them,  and  the  treasurer  to  re- 
port to  them  a  list  of  all  polls  collected. — School  Fund :  The 
school  fund  consists  of  a  poll  tax  of  one  dollar  on  each  male 
individual  between  twenty-one  and  fifty  years  of  age,  which 
must  be  applied  to  educational  purposes  in  the  district  where 


386  SYNOPSES   OF   SCHOOL   LAWS. 

collected ;  and  a  tax  on  all  taxable  property  in  the  state.  This 
tax  cannot  be  less  than  two  mills,  but  may  be  as  much  more  as 
the  legislature  may  levy.  The  amount  raised  in  each  county 
from  this  source  remains  in  the  county  where  collected,  and  is 
distributable  among  the  school  districts  of  the  county  in  pro- 
portion to  the  average  attendance  of  the  districts.  These  are 
constitutional  provisions,  and  cannot  be  in  any  way  altered  or 
changed  except  by  constitutional  amendments  voted  by  the 
people. 

SOUTH  DAKOTA. 
(Compiled  by  Hon.  A.  G.  SOMERS,  Deputy  State  Superintendent.) 

The  present  school  law  was  enacted  at  the  second  session  of 
the  legislature  of  South  Dakota,  and  went  into  operation  March 
9,  1891.  Prior  to  its  enactment  two  school  codes  were  in  force 
in  the  state.  One,  governing  about  forty  counties,  provided  for 
so-called  township  districts,  which  were  divided  into  sub-districts 
containing  one  school  each  ;*  the  other,  governing  the  remaining 
counties  of  the  state,  provided  for  a  school-district  system,  of 
which  each  district  contained  but  one  school.  The  present  law 
upon  taking  effect  did  not  change  the  boundaries  of  school  cor- 
porations, but  abolished  sub-districts.  All  school  corporations 
are  now  called  school  districts.  As  a  result  of  the  adoption  of 
the  present  law,  school  districts  are  unequal  in  size,  some  con- 
taining but  one  school,  while  others  contain  two  or  more,  as  the 
district  was  formerly  under  the  school-district  or  school-township 
system.  The  present  code  may  be  called  a  compromise  between 
the  two  systems  just  mentioned,  and  was  adopted  with  a  view 
to  effect  uniformity  in  the  administration  of  the  school  law  of 
the  state.  Provision  is  made  in  the  law  whereby  the  large  dis- 
tricts—  school-township  districts — may  be  cut  up  into  smaller 
ones  of  one  school  each,  and  smaller  districts  consolidated  into 
a  large  one  equal  in  area  to  the  civil  township.  Provision  is 
also  made  for  changing  boundary -lines  between  adjacent  dis- 
tricts. Districts  containing  two  or  more  schools  hold  four  stated 
or  regular  meetings  each  year  for  the  transaction  of  business ; 


SOUTH   DAKOTA.  387 


districts  containing  but  one  school  hold  one  regular  meeting  of 
the  board  annually ;  but  provision  is  made  for  calling  meetings 
of  the  voters  at  any  time,  who  may  instruct  the  board  relative 
to  the  management  of  the  school.  Special  meetings  of  the  elect- 
ors of  a  school  district  may  be  called,  as  occasion  requires,  to 
vote  upon  the  question  of  issuing  bonds,  selecting  school-house 
sites,  building  or  hiring  school-houses,  etc.  The  law  is  defective 
in  not  providing  for  election  details,  but  will  no  doubt  be  rem- 
edied at  the  next  legislative  session.  The  care,  control  and  gen- 
eral management  of  the  schools  devolve  upon  the  school  boards. 
For  districts  governed  by  the  general  provisions  of  the  act,  the 
school  board  consists  of  three  —  a  chairman,  a  clerk,  and  a  treas- 
urer. These  officers  are  elected  for  a  term  of  three  years,  but 
their  terms  are  so  arranged  that  one  goes  out  of  office  and  his 
successor  is  elected  each  year.  In  cities  and  towns  governed 
by  the  provisions  of  chapter  9  of  the  act,  the  governing  board 
is  styled  a  board  of  education,  and  consists  of  three,  except 
that  in  cities  and  towns  divided  into  wards,  one  member  shall 
be  elected  from  each  ward.  The  school  board  is  empowered  to 
make  all  necessary  repairs  to  the  school-houses,  out-buildings, 
and  appurtenances,  and  furnish  fuel  and  all  necessary  supplies 
for  the  school.  The  board  makes  all  contracts  on  behalf  of  the 
district.  Teachers'  contracts  are  required  to  be  in  writing,  and 
must  be  signed  by  at  least  two  members  of  the  board,  and  the 
teacher.  The  school  board  of  each  district  determines  what 
text-books  may  be  used  in  the  schools,  except  in  such  counties 
as  have  adopted  uniformity  of  text-books  as  provided  in  chapter 
104,  Session  Laws  of  1891.  In  such  counties  the  county  board 
of  education  selects  the  text-books.  All  persons  giving  instruc- 
tion in  the  public  schools  of  the  state  governed  by  the  school 
laws  of  1891,  except  specialists  mentioned  in  section  13  of  chap- 
ter 2,  are  required  to  hold  a  certificate  of  qualification,  either 
from  the  state  or  county  superintendent.  All  children  between 
six  and  twenty  years  are  of  legal  school  age.  School  boards 
are  required  to  cooperate  with  teachers  in  the  government  and 


388  SYNOPSES  OF  SCHOOL   LAWS. 

discipline  of  the  schools,  and  may  make  proper  rules  and  regu- 
lations for  the  same.  They  may  temporarily  expel  from  school 
any  pupil  for  insubordination  and  disobedience.  County  super- 
intendents exercise  a  direct  supervision  over  the  schools  within 
their  jurisdiction,  except  in  towns  of  more  than  one  thousand 
inhabitants.  The  county  superintendent  is  the  organ  of  com- 
munication between  school  officers  and  the  state  superintendent 
of  public  instruction,  whose  supervision  is  for  the  most  part  ad- 
visory. The  state  superintendent  has  appellate  jurisdiction  over 
cases  determined  by  the  county  superintendent. 

TENNESSEE. 
(Compiled  by  Hon.  W.  R.  GAKKETT,  State  Superintendent.) 

System:  State  superintendent,  county  superintendent,  dis- 
trict school  directors. —  State  Superintendent  appointed  by 
the  governor,  confirmed  by  the  senate.  Duties  are :  To  collect 
and  dispense  information  ;  to  inspect ;  to  supervise  the  admin- 
istration of  schools ;  prepare  forms  and  blanks ;  have  printed 
school  laws;  to  appoint  agents  to  examine  the  schools  in  the 
county;  require  county  superintendent  to  report;  to  prescribe 
the  mode  of  examining  and  licensing  teachers,  and  their  quali- 
fications ;  preserve  documents ;  report  to  the  comptroller  the 
scholastic  population ;  and  report  to  the  governor. —  County 
Superintendent  is  elected  by  the  county  court  biennially; 
may  be  removed  for  misconduct  or  inefficiency,  charges  hav- 
ing been  made  in  writing.  Has  supervision  of  schools  in  the 
county ;  visits  teachers  and  district  directors,  to  promote  their 
interests,  to  suggest  changes  in  text-books,  and  to  see  that  di- 
rectors make  reports ;  to  perform  such  duties  in  regard  to  ex- 
amination of  teachers  and  issuing  certificates  to  them  as  are 
required  of  him  by  the  state  superintendent ;  to  report  to  the 
county  trustee  the  scholastic  population  ;  to  make  annual  report ; 
to  keep  record. — District  Directors:  Three  elected  in  each 
district.  Duties :  To  explain  and  enforce  the  laws  and  regula- 
tions ;  employ  teachers,  and  dismiss  them  for  incompetency> 


TEXAS.  389 

improper  conduct,  or  inattention ;  to  suspend  or  dismiss  pupils 
when  the  prosperity  and  efficiency  of  the  school  make  it  neces- 
sary ;  to  use  the  school  fund  apportioned ;  to  see  that  the  cen- 
sus is  taken ;  to  hold  regular  meetings  as  prescribed  and  special 
meetings  when  called  by  the  chairman  or  by  any  one  of  the 
members ;  to  keep  separate  white  and  colored  schools ;  to  con- 
trol public-school  property.  No  state  or  county  officer  can  be 
interested  in  a  school  contract. — Contracts  with  teachers  must 
be  in  writing.— Teacher,  for  cause,  may  suspend  pupil  from 
attendance  on  school  until  the  case  is  decided  by  the  board  of 
school  directors,  which  shall  be  with  as  little  delay  as  possible. 
State  board  of  education  controls  normal  schools ;  has  no  other 
powers.  Cities,  incorporated  towns,  and  municipal  corporations 
of  the  class  called  taxing  districts,  have  power  to  establish  boards 
of  education,  and  to  establish  and  maintain  graded  high  schools. 

TEXAS. 
(Compiled  by  Hon.  J.  M.  CARLISLE,  State  Superintendent.) 

Districts:  One  hundred  forty-five  counties  have  school  dis- 
tricts ;  the  commissioners'  court  fixes  the  boundaries.  Change 
by  majority  vote  of  each  district  affected  by  the  change.  Citi- 
zens meet  on  the  first  Saturday  in  June  and  elect  three  trustees, 
who  must  be  able  to  read  and  write.  Notices  are  sent  out  by 
the  commissioners'  court  as  for  other  elections.  Seventy-five 
counties  have  no  fixed  districts.  They  are  called  community 
counties.  The  citizens  of  each  community  petition  the  county 
superintendent  each  year  for  a  school,  and  that  certain  named 
persons  be  appointed  trustees.  The  patrons  of  any  school  are 
not  limited  as  to  territory.  There  is  no  continued  organization. 
— Powers  of  District  Trustees :  They  contract  with  teachers, 
determine  the  number  of  schools  in  the  district,  the  location  of 
each,  and  when  schools  shall  open  and  close ;  they  manage  the 
schools,  subject  to  the  regulations  of  the  county  and  state  super- 
intendent ;  they  approve  all  vouchers ;  they  are  not  allowed  to 
create  deficiency  debts;  they  can  dismiss  teachers,  but  the 


390  SYNOPSES  OF  SCHOOL  LAWS. 

teachers  so  dismissed  may  appeal  to  the  county  and  state  super- 
intendents; they  may  employ  assistant  teachers.  In  cities, 
towns,  and  taxing  districts,  the  trustees  have  increased  powers 
as  to  the  general  management  of  the  schools,  and  are  not  limited 
as  to  the  salaries  of  teachers. — Contracts,  Supplies,  War- 
rants: The  trustees  contract  with  teachers,  subject  to  the  limita- 
tion as  to  salaries  and  certificates  fixed  by  law  and  the  approval 
of  the  county  superintendent.  The  contracts  of  cities,  towns, 
and  taxing  districts  are  not  required  to  be  approved  by  the 
county  superintendent.  They  buy  all  supplies,  make  repairs, 
and  have  school-houses  built.  They  cannot,  under  the  law, 
create  deficiency  debts  for  teachers'  salaries  or  other  purposes. 
All  warrants  must  be  approved  by  the  county  superintendent, 
and  his  permission  must  be  obtained  before  warrants  for  sup- 
plies, repairs,  or  buildings,  are  drawn. — Teacher  cannot  con- 
tract until  he  has  a  valid  certificate.  In  the  rural  schools  and 
in  the  non-taxing  towns  salaries  are  limited  to  the  grade  of 
the  certificate  held — third  grade  $30,  second  grade  $50,  first 
grade  $75.  They  may  receive  tuition  collected  from  pupils 
over  and  under  school  age,  and  from  those  who  attend  from 
other  districts,  or  this  may  go  for  extending  the  school  term. 
— Teachers1  Certificates:  Each  county  has  an  examining 
board  —  three  teachers  with  first-grade  certificates;  questions 
are  furnished  by  the  state  superintendent.  Examinations  are 
held  quarterly.  These  certificates  are  good  only  in  the  county 
in  which  they  are  issued.  A  third-grade  certificate  is  good  for 
one  year,  a  second-grade  for  one  or  two  years,  according  to  the 
grade  made,  a  first-grade  good  for  one,  two  or  three  years,  ac- 
cording to  the  grade  made.  A  summer  normal  institute  is  held 
in  each  senatorial  district  each  year.  First-  and  second-grade 
certificates  are  issued,  good  for  two  years.  Questions  are  pre- 
pared by  the  state  superintendent,  and  graded  by  a  state  board 
appointed  by  him.  State  certificates  are  granted  once  a  year 
on  specified  subjects,  papers  being  graded  by  a  state  board. 
Life  certificates  are  granted  to  B.  S.  and  A.  B.  graduates  of  first- 


VERMONT.  391 


class  colleges,  provided  each  candidate  has  taught  five  years  in 
Texas. — Pupil — Punishment — Rules :  The  rules  are  left  to 
local  trustees.  A  pupil  may  be  suspended  for  the  remainder  of 
any  school  year  on  account  of  incorrigible  conduct. — State 
Superintendent:  He  may  issue  directions  in  all  cases  wherein 
the  law  makes  no  provisions,  or  when  hardships  or  delays  will 
result  without  such  rules.  He  is  the  executive  officer  of  the 
state  in  all  educational  matters.  He  has  power  to  withhold  the 
compensation  of  teachers  and  school  officers  until  the  required 
reports  are  made.  He  submits  forms  for  reports,  hears  appeals 
from  the  rulings  and  decisions  of  the  county  superintendents, 
and  acts  as  secretary  of  the  state  board  of  education. — County 
Superintendent:  He  has  the  general  supervision  of  all  the 
schools  in  his  county ;  he  visits  all  the  schools,  approves  all 
vouchers  against  the  school  fund,  and  makes  a  report  to  the 
state  superintendent. 

VERMONT. 

System:  Superintendent  of  education,  town  superintendent, 
towns,  districts ;  superintendent  to  have  general  supervision ; 
shall  hold  teachers'  institute  in  each  county  during  his  biennial 
term ;  shall  visit,  lecture,  advise.  Graduate  normal  school  hold- 
ing ten-years'  certificate,  teaching  200  weeks,  may  obtain  a  re- 
newal good  until  revoked.  Graduate  of  highest  course  of  normal 
school  in  another  state  may  obtain  certificate  to  teach  in  any 
county.  Towns  may  be  organized  into  districts  and  may  be  di- 
vided into  districts,  or  several  towns  may  unite  and  form  a  dis- 
trict.— District  at  Annual  Meeting  elect  a  moderator,  clerk, 
collector,  treasurer,  one  or  three  auditors,  and  a  prudential  com- 
mittee of  one  or  three  persons,  and  may  elect  the  collector  of 
town  taxes. — Prudential  Committee  employ  teacher,  remove 
him  when  necessary,  and  may  adopt  measures  not  in  conflict 
with  town  superintendent.  Prudential  committee,  when  not 
prohibited  by  vote,  may  permit  use  of  house  for  religions  or 
other  purposes.  Schools  may  be  maintained  under  the  town  sys- 
tem. Town  central  school  system  for  advanced  pupils  may  be 


392  SYNOPSES   OF   SCHOOL   LAWS. 

adopted.  Town  system  may  be  abolished.  School  age  is  five 
to  eighteen  years.  Compulsory  education  is  required. — Text- 
Books  may  be  changed  every  fifth  year.  Any  town  or  district 
may  purchase  and  hold  text-books  for  use  in  its  schools  if  it  so 
votes  in  a  meeting  warned  for  that  purpose.  The  county  su- 
pervisor and  county  board  of  education  are  abolished,  and  town 
superintendents  restored.  The  state  superintendent  and  gov- 
ernor shall  appoint  in  each  county  an  Examiner  of  Teachers, 
and  fill  vacancies.  Examiners  to  consult  with  town  superin- 
tendents and  hold  suitable  number  of  examinations  of  teachers 
in  spring  and  autumn  ;  may  employ  suitable  person  to  examine  ; 
shall  issue  certificates  on  examination  papers  and  report  of  per- 
son conducting  examination  ;  if  examiner  is  unable  to  issue  cer- 
tificate, state  superintendent  may.  No  person  to  teach  without 
certificate ;  exception  as  to  principal  of  highest  department  in 
graded  schools ;  teachers  to  be  not  less  than  seventeen  years  of 
age.  Three  grades  of  certificates  to  be  issued  by  examiner : 
first  grade  to  one  teaching  forty  weeks,  with  examination  papers 
of  grade  required  by  state  superintendent,  good  for  five  years 
in  any  town  in  the  state ;  second  grade  to  one  who  has  taught 
twelve  weeks,  and  whose  examination  papers  are  of  grade  re- 
quired by  state  superintendent,  and  good  for  two  years  in  any 
town  in  the  state  ;  third  grade  limited  to  a  particular  school  and 
not  to  exceed  one  year.  Examiner  may  be  removed  by  state 
superintendent  and  governor  for  cause. — Superintendent  of 
Education  shall  prepare  questions  for  examination  and  blanks 
for  teachers'  certificates,  and  fix  the  standard  required. — Town 
Superintendents  may  issue  permits  to  teach  a  particular 
school  for  a  single  term,  not  to  be  renewed  more  than  three 
times  to  anyone.  Town  superintendent  of  each  town  shall  have 
power  to  dismiss  any  teacher  who  is  incompetent.  Nothing  in 
the  above  shall  interfere  with  existing  arrangements  of  such 
towns  as  may  be  acting  under  the  town  system  of  schools ;  and 
the  chairman  of  the  school  directors  shall  perform  the  duties  of 
the  town  superintendent.  School  districts  hold  annual  meeting 
on  the  last  Tuesday  of  March. 


VIRGINIA.  393 


VIRGINIA. 
(Compiled  by  Hon.  JOHN  E.  MASSE Y,  State  Superintendent.) 

Each  county  is  subdivided  into  school  districts ;  three  trus- 
tees for  each  school  district  constitute  district  school  board ; 
district  trustees  of  a  county  constitute  county  school  board. 
Each  district  board  elects  from  its  members  a  chairman  and  a 
clerk. — Duties  of  District  School  Boards :  Explain  and  en- 
force school  laws,  rules,  regulations,  and  observe  same ;  employ 
and  dismiss  teachers ;  suspend  or  dismiss  pupils ;  decide  who 
may  receive  text-books  free  (refers  to  indigent  pupils) ;  see  that 
school  census  is  taken  ;  hold  regular  meetings ;  call  meeting  of 
people  for  consultation  in  regard  to  school  interests  of  districts ; 
to  make  estimates  of  school  funds ;  manage  and  control  school 
property  of  district ;  make  reports  to  county  superintendent ; 
to  visit  schools,  etc. — District  Boards  make  contracts  (writ- 
ten) with  teachers,  purchase  supplies,  and  issue  warrants  in 
payment  of  teachers'  salaries  and  incidental  and  other  expenses. 
— Under  the  constitution,  the  state  board  of  education  provides 
for  uniformity  of  Text-Books.  The  state  board  prescribes  a 
list  of  books  from  which  county  and  city  school  boards  select. 
(State  board  is  composed  of  the  governor,  superintendent  pub- 
lic instruction,  and  attorney-general.)  —  Teachers  elected  by 
district  boards ;  must  hold  certificate  issued  by  superintendent 
of  county  or  city  in  which  they  purpose  teaching ;  elected  by 
district  boards  from  list  licensed  by  county  or  city  superin- 
tendent ;  must  enter  into  written  contract  with  district  board. 
Schools  free  to  all  persons  between  the  ages  of  five  and  twenty- 
one  years  residing  within  district;  white  and  colored  pupils 
taught  in  separate  schools. — State  Superintendent  —  Du- 
ties: Chief  executive  of  school  system;  see  that  school  laws 
.are  faithfully  executed ;  use  all  proper  means  to  promote  a  de- 
sire and  appreciation  of  education  among  the  people ;  determine 
true  intent  and  meaning  of  the  school  laws  and  regulations, 
<etc. ;  prepare  blank  forms,  registers,  etc. ;  require  reports ;  in- 
spect schools ;  decide  certain  appeals ;  file  decisions  and  official 


394:  SYNOPSES  OF   SCHOOL  LAWS. 

papers ;  apportion  state  school  funds ;  submit  annual  report  to 
board  of  education,  etc. — Duties  of  County  and  City  Super- 
intendents: Explain  school  system;  sub  -  apportion  school 
funds ;  examine  teachers  and  grant  certificates ;  promote  effi- 
ciency of  teachers;  assist  in  organizing  district  boards;  visit 
and  examine  schools ;  decide  appeals  and  complaints ;  admin- 
ister oaths  and  take  testimony  in  matters  relating  to  public 
schools ;  require  reports  from  district  clerks,  etc. ;  keep  records 
of  official  acts ;  make  annual  report  to  superintendent  public 
instruction,  etc. — County  and  City  Treasurers  collect  and 
disburse  school  funds.  All  school  funds  are  paid  out  on  war- 
rants of  district  school  boards.  State  school  funds  are  appor- 
tioned on  basis  of  school  population. 

WASHINGTON. 
(Compiled  by  Hon.  R.  B.  BRYAN,  State  Superintendent.) 

System:  State  superintendent  of  public  instruction,  state 
board  of  education,  county  superintendents  of  common  schools,, 
board  of  directors,  district  clerk  for  each  district. — State  Su- 
perintendent shall  have  general  supervision  over  all  matters 
pertaining  to  the  common  schools ;  shall  report  to  the  governor 
biennially,  prepare  forms,  travel  and  visit  the  different  counties,, 
cause  to  be  printed  the  common-school  laws ;  shall  be  ex  officio 
president  of  the  board  of  education ;  shall  biennially  call  a  con- 
vention of  county  superintendents ;  apportion  state  school  fund  ; 
shall  require  a  report  from  state  and  private  schools ;  shall  keep 
a  directory  of  school  officers  and  teachers ;  shall  file  all  records 
and  papers,  decide  points  of  law  submitted  by  county  superin- 
tendents, or  on  appeal  from  the  county  superintendents  —  and 
his  decision  is  final  unless  set  aside  by  a  court  of  competent 
jurisdiction;  may  employ  clerk. — State  Board  of  Educa- 
tion: Four  persons  appointed  by  the  governor,  with  the  super 
intendent  of  public  instruction,  shall  constitute  the  state  board 
of  education.  They  shall  adopt  uniform  series  of  Text-Books 
once  in  five  years;  may  reject  proposals,  (publisher  must  give 


WASHINGTON.  395 


bond)  ;  shall  prepare  a  course  of  study  ;  use  a  seal.  They  shall 
sit  as  a  board  of  examiners,  and  grant  state  certificates  and  life 
diplomas. — State  Certificates  shall  be  granted  to  such  as 
shall  satisfy  the  board  that  they  have  taught  twenty-seven 
months,  nine  months  in  the  public  schools  of  the  state,  and 
must  pass  a  satisfactory  examination  in  the  branches  required, 
or  file  a  certified  copy  of  a  diploma  from  some  state  normal 
school,  or  of  a  state  or  territoral  certificate  from  any  state  or 
territory  the  requirements  to  obtain  which  shall  not  have  been 
less  than  those  required  by  this  state.  State  certificates  are 
valid  for  five  years,  and  may  be  renewed  or  may  be  revoked 
by  the  board.  Life  diplomas  are  granted  to  such  as  have  taught 
successfully  ten  years,  not  less  than  one  of  which  shall  have 
been  in  the  common  schools  of  this  state.  They  may  be  re- 
voked for  cause.  The  board  must  prepare  questions  for  county 
examinations. — County  Superintendent  shall  have  general 
supervision  of  the  county,  visit  schools,  enforce  rules  and  regu- 
lations and  course  of  study  adopted  by  the  state  board,  keep 
record,  administer  oaths,  preserve  manuscripts  of  examination ; 
teachers  may  appeal  to  the  state  superintendent.  County  super- 
intendent makes  annual  report,  keeps  transcript  of  boundaries, 
shall  endeavor  to  harmonize  boundaries,  may  appoint  directors 
and  district  clerks  to  fill  vacancies  and  for  new  districts,  appor- 
tion school  funds. — Teachers'  Certificates  are:  First  grade 
five  years,  second  grade  two  years,  third  grade  one  year.  Board 
of  examiners  may  issue  certificates  without  examination  to  gradu- 
ates of  state  normal  schools,  or  to  holders  of  state  certificates  or 
life  diplomas  from  other  states. — Board  of  Directors  for  school 
district,  three  in  number.  They  shall  have  power  to  employ  and 
discharge  teachers  and  employes ;  shall  enforce  rules  and  regu- 
lations of  the  superintendent  of  public  instruction  and  state 
board ;  shall  provide  supplies ;  rent,  repair,  furnish  and  insure, 
build  or  remove  school-houses;  purchase  or  sell  real  estate  when 
directed  by  vote  of  district ;  may  hold  title  to  property  for  dis- 
trict ;  may  suspend  pupil  for  cause ;  shall  exclude  immoral  or 


396  SYNOPSES   OF   SCHOOL   LAWS. 

sectarian  books ;  may  authorize  use  of  school  for  other  purposes. 
Appeal  may  be  taken  from  their  decisions  to  county  superin- 
tendent.— District  Clerk :  Elected  in  each  district.  He  shall 
keep  records,  take  census,  note  attendance  at  schools,  exclude 
Indians  and  Chinese,  note  defective  youth,  report  names  of 
children,  enrollment,  teachers'  wages,  text-books  used,  etc.,  etc. 
— Text-Books  not  to  be  changed  in  less  than  five  years. — 
Complusory  attendance  is  required.  Party  abusing  teacher 
or  disturbing  school  or  school  meeting  is  liable  to  punishment. 

WEST  VIRGINIA. 

System:  State  board  of  education,  state  superintendent, 
county  superintendent,  school  districts,  district  trustees,  board 
of  education  of  district. — Board  of  Education  may  determine 
number  of  teachers,  and  salaries. — Teachers:  Teachers'  certif- 
icate— first  grade  not  less  than  $25  per  month,  second  grade 
not  less  than  $22  per  month,  third  grade  not  less  than  $18  per 
month. — Board  of  Education  of  a  district  or  independent 
district  is  a  corporation,  and  succeeds  to  the  rights  of  former 
township  and  district  boards ;  may  prosecute  suits ;  is  liable  for 
the  claims  of  predecessors ;  shall  receive  and  hold  property. 
Board  of  education  appoints  secretary.  Board  of  education 
determines  and  locates  schools,  changes  boundaries.  Appeal  is 
taken  to  county  superintendent.  Teacher  must  have  temperate 
habits  and  good  morals.  Effects  of  alcohol  and  narcotics  are 
to  be  taught.  Teacher  may  be  removed  for  incompetency, 
neglect  of  duty,  intemperance,  profanity,  cruelty,  or  immorality. 
Trustees  may  exclude  pupils  having  diseases ;  may  suspend  or 
expel  pupils  disorderly,  refractory,  indecent,  or  immoral;  but 
-all  the  trustees  must  have  had  notice,  and  two  must  concur,  and 
this  is  subject  to  revision  by  the  board  of  education. — County 
Board  of  Examiners:  Composed  of  county  superintendent 
and  two  experienced  teachers.  ,  All  applicants  for  teachers 
must  be  examined.  First-grade  certificate,  average  90  per  cent.; 
not  less  than  75  on  any  one  branch;  good  for  four  years. 


WISCONSIN.  397 


Second-grade,  average  80  per  cent.;  not  less  than  70  on  any- 
one  branch  ;  good  for  two  years.  Third-grade^  general  average 
of  70 ;  not  lower  than  60  on  any  one  branch. — State  Board 
of  Examiners  can  grant  certificates  to  graduates  of  state  nor- 
mal school  or  state  university.  (First  class  is  twelve  years,  and 
second  six  years.) — Text-Books  adopted  by  state,  furnished 
pupils  for  cash.  Te  be  enforced  in  any  school  district,  when, 
the  board  of  education  concur. 

WISCONSIN. 
(Compiled  by  Hon.  O.  E.  WELLS,  State  Superintendent.) 

School  Districts  are  formed  and  altered  by  town  boards.. 
Every  district  is  deemed  duly  organized  when  any  two  of  the 
officers  elected  at  the  first  meeting  consent  to  serve.  The  time 
for  holding  the  annual  meeting  is  fixed  by  statute,  and  occurs 
on  the  first  Monday  in  July.  Special  district  meetings  may  be 
called  by  the  clerk,  upon  the  petition  of  any  five  legal  voters  of 
the  district.  Six  days'  notice  is  required  for  a  district  meeting. 
— The  District  Board  represents  the  district  in  all  business 
transactions,  and  exercises  a  general  control  over  the  property 
of  the  district.  The  board  is  composed  of  a  clerk,  director,  and 
treasurer.  No  act  is  valid  unless  voted  at  a  meeting  of  the 
board.  The  clerk  keeps  all  records,  takes  the  census  annually,, 
and  makes  all  reports.  The  director  countersigns  all  orders,, 
and  represents  the  district  in  actions  by  and  against  it.  The 
treasurer  is  the  custodian  of  the  district's  funds,  and  pays  out 
the  same  only  on  the  order  of  the  clerk,  countersigned  by  the 
director.  The  board  only  has  power  to  bind  the  district  by  con- 
tract. All  necessary  supplies  are  furnished  by  the  board.— 
Text-Books  may  be  purchased  by  the  district  and  loaned  to 
pupils,  if  the  legal  voters  so  decide  at  the  annual  meeting.  Oth- 
erwise the  pupils  furnish  the  books.  The  board  determines  the 
text-books  to  be  used.  The  board  makes  all  contracts  for  the 
services  of  teachers.  Only  duly  qualified  teachers  can  enter  into 
contracts  to  teach  public  schools.  Certificates  granted  by  the; 


398  SYNOPSES   OF   SCHOOL   LAWS. 

proper  authority,  and  diplomas  of  normal  schools,  state  univer- 
sity, and  colleges,  located  within  the  state,  when  countersigned 
by  the  state  superintendent,  are  the  only  evidence  of  the  legal 
qualification  of  teachers.  The  contract  is  required  to  be  in 
writing,  and  a  copy  of  the  certificate  must  be  attached  thereto. 
The  schools  are  free  to  all  children  between  the  ages  of  four 
and  twenty  years.  Residents  of  the  district  between  the  ages  of 
twenty  and  thirty  years  may  be  admitted  by  the  board,  free  of 
charge.  The  board  has  power  to  make  all  needful  rules  for  the 
government  of  schools,  to  suspend  or  expel  pupils  who  persist- 
ently refuse  to  obey  the  rules  established. — The  State  Super- 
intendent has  general  supervision  over  the  public  schools  of 
the  state.  He  prescribes  courses  of  study  for  high  schools,  ex- 
amines and  determines  all  appeals,  apportions  the  income  of  the 
school  fund,  and  is  a  member  of  the  board  of  regents  of  the 
normal  schools  and  state  university.  The  county  superintendent 
examines  and  licenses  teachers,  visits  schools,  conducts  insti- 
tutes, and  advises  teachers  and  school  boards  in  all  matters  re- 
lating to  schools. 

WYOMING. 
(Compiled  by  Hon.  STEPHEN  T.  FARWELL,  State  Superintendent.) 

System:  State  superintendent,  county  superintendent,  school 
districts. —  State  Superintendent  shall  have  general  super- 
vision, may  grant  certificates,  and  regulate  grade  of  county 
certificates. —  County  Superintendent  may  grant  teacher's 
certificate,  good  for  two  years;  shall  determine  appeals  from 
-decision  of  district  courts.  An  appeal  from  county  superin- 
tendent to  board  of  county  commissioners,  and  from  county 
•commissioners  to  superintendent  of  public  instruction,  is  granted 
on  formation  of  school  district. — District  Meeting  may  fix 
the  site,  vote  money,  purchase  or  lease  school-house ;  build, 
rent  or  repair  school-house;  furnish  supplies;  direct  sale  of 
property ;  delegate  these  powers  to  district  board. — Compul- 
sory Education  is  established ;  effects  of  alcohol  and  narcotics 
are  required  to  be  taught. —  Superintendent  may  grant  Teach- 


WYOMING.  399 


ers'  Certificates:  Sec.  3908.  The  superintendent  of  public 
instruction  shall  also  have  power  to  grant  certificates  of  qualifi- 
cation to  teachers  of  proper  learning  and  ability,  to  teach  in 
any  public  school  in  the  state,  and  to  regulate  the  grade  of 
county  certificates.  Sec.  3914.  He  shall  examine  every  person 
offering  himself  or  herself  as  teacher  of  public  schools,  and  if 
in  his  opinion  such  person  is  qualified  to  teach  a  public  school, 
shall  give  him  or  her  a  certificate  authorizing  him  or  her  to 
teach  a  public  school  in  his  county  for  one  year.  Whenever 
practicable,  the  examination  of  teachers  shall  be  competitive, 
and  the  certificate  shall  be  granted  according  to  the  qualifica- 
tions of  the  applicant.  Sec.  3916.  The  county  superintendent 
of  any  county  in  the  state  may,  if  in  his  opinion  the  interest  of 
the  schools  will  be  as  well  served,  grant  a  certificate  to  any 
person  of  requisite  ability  and  qualification  for  two  years  or 
during  his  term  of  office,  or  may  renew  a  certificate  previously 
given  to  such  person,  without  a  re-examination. — Text-Books 
(Constitution)  :  Sec.  11.  Neither  the  legislature  nor  the  superin- 
tendent of  public  instruction  shall  have  power  to  prescribe  text- 
books to  be  used  in  the  public  schools.  Adoption,  and  vise  of 
text-books  (Laws  of  1888):  Sec.  3.  At  th&jilxpiration  of  the 
period  of  five  years  for  which  the  books  now  in  use  are  adopted, 
the  county  superintendents  and  city  superintendents  of  schools 
in  the  state  shall  meet  at  a  call  of  the  state  superintendent  of 
public  instruction  to  adopt  a  series  of  text-books,  and  the  books 
thus  adopted  shall  be  the  only  legal  text-books  to  be  used  in 
the  public  schools  of  the  state  for  the  ensuing  five  years. — Au- 
thority of  the  board  to  Admit  or  Remove  Scholars :  Sec. 
3037.  The  district  board  shall  have  power  to  admit  scholars 
from  adjoining  districts,  and  remove  scholars  for  disorderly 
conduct ;  and  when  scholars  are  admitted  from  other  districts 
the  district  board  may,  in  their  discretion,  require  a  tuition  fee 
from  such  scholars. 


400  SYNOPSES  OF  SCHOOL  LAWS. 


TEACHERS'  CERTIFICATES. 


I  am  indebted  to  Hon.  Geo.  W.  Winans,  State  Superintendent 
of  Kansas,  who  had  issued  a  circular  note  of  inquiry  on  the  sub- 
ject of  the  effect  of  a  teacher's  certificate  in  states  other  than 
where  issued,  and  the  responses  received  by  him  are  set  out 
below : 

Alabama. — Applicants  must  pass  an  examination.  Nothing 
said  in  the  law  about  diplomas  from  other  states.  (School 
Law.) — Jno.  G.  Harris,  State  Sup't. 

Arkansas. — "Life  certificates  are  granted  upon  examination 
alone.  No  credit  is  given  to  the  applicant  ~for  any  similar  doc- 
ument granted  by  any  other  state  or  any  college." — J.  H. 
Shinn,  State  Sup't. 

California. — Certificates  are  granted,  without  examination 
to  holders  of  state  normal-school  diplomas  and  state  life  diplo- 
mas. (Circular.) — J.  W.  Anderson,  State  Sup't. 

Colorado. — The  state  board  of  education  may,  upon  the 
recommendation  of  the  state  board  of  examiners,  grant  state 
diplomas,  without  examination,  to  persons  holding  a  diploma 
from  some  other  state.  (Circular.) — N.  B.  Coy,  State  Sup't. 

Connecticut. — "The  board  does  not  think  it  has  authority  to 
give  credit  for  certificates  granted  in  other  states.  If  we  had 
authority  we  probably  would  not  accept  them." — Chas.  D. 
Hine,  Sec'y. 

Delaware. — "No  credit  is  given  to  certificates  granted  in 
other  states."— C.  C.  Trudal,  Sup't  of  Kent  Co. 

Florida. — "  Certificates  from  other  states  are  considered  as 
evidence  of  proper  character  to  a  degree,  but  certificates  are  not 
issued  upon  them." — Albert  J.  Kussell,  State  Sup't. 


TEACHERS'  CERTIFICATES.  401 

Georgia. — "I  have  no  authority  under  our  law  to  recognize 
diplomas  or  licenses  from  other  states." — S.  D.  Bradwell,  State 
School  Commissioner. 

Illinois. — "  State  certificates  shall  only  be  granted  upon  pub- 
lic examination,  in  such  branches  and  upon  such  terms  and  by 
such  examiners  as  the  state  superintendent  and  the  principals 
of  the  state  universities  may  prescribe." — Henry  Raab,  State 
Sup't. 

Indiana. — "Our  state  board  does  not  give  credit  to  state  cer- 
tificates issued  by  other  states." — Hervey  D.  Tories,  State 
Sup't. 

Iowa. — UA  state  certificate  from  another  state  may  be  accepted 
in  place  of  the  examination  in  academic  studies.  The  candi- 
date, however,  will  be  obliged  to  submit  his  credentials  to  the 
board  of  examiners,  together  with  proof  of  at  least  eighteen 
months'  successful  work  in  Iowa.  He  will  also  be  obliged  to 
pass  an  examination  in  theory  and  art  of  teaching,  or  such 
branches  as  the  board  may  designate." — J.  B.  Knoepfler,  Pres. 
State  Board  of  Education. 

Kansas. — "The  law  does  not  recognize  such  certificates  or  di- 
plomas. They  are  of  no  value  in  this  state." — Geo.  W.  Winans, 
State  Sup't. 

Kentucky. — "No  credit  is  given  to  these  certificates  and  di- 
plomas granted  in  other  states." — Ed.  Porter  Thompson,  State 
Sup't. 

Louisiana. — '-Our  law  makes  no  provision  for  the  issuing  of 
life  certificates.  Teachers  have  to  undergo  examinations  by  the 
committees  appointed  by  parish  boards  for  that  purpose." — W. 
H.  Jack,  State  Sup't. 

Maryland. — "No  certificates  are  granted  in  this  state  upon 
examinations  taken  in  other  states." — E.  B.  Prettyman,  State 
Sup't. 


402  PUBLIC   SCHOOL   LAW. 

Massachusetts. — "By  law,  no  certificate  from  another  state  is 
accepted  as  sufficient." — J.  W.  Dickinson,  Sec'y. 

Michigan. — "It  has  never  been  the  practice  in  this  state  to 
grant  certificates  on  examinations  held  in  other  states,  or  to  in- 
dorse certificates  granted  in  other  states." — Ferris  S.  Fitch,  State 
Sup't. 

Minnesota. — "  The  certificates  of  other  states  are  not  honored 
in  this."— D.  L.  Kiehle,  State  Sup't. 

Mississippi. — "  We  issue  no  life  licenses,  and  do  not  recog- 
nize those  of  other  states." — J.  K.  Preston,  State  Sup't. 

Missouri. — "The  state  superintendent  of  Missouri  is  not  per- 
mitted, in  granting  state  certificates,  to  take  into  consideration 
diplomas  and  certificates  from  other  states." — L.  E.  Wolfe,  State 
Sup't. 

Montana. — "Under  our  statute  we  cannot  issue  term  certifi- 
cates or  life  diplomas  to  teachers  upon  examination." — John 
Gannon,  State  Sup't. 

Nebraska. — "Our  statutes  do  not  authorize  the  granting  of 
state  certificates  on  similar  documents  granted  in  other  states." 
—A.  K.  Goudy,  State  Sup't. 

Nevada. — Upon  presentation  to  the  state  board  of  a  life  cer- 
tificate of  any  state,  of  any  state  normal-school  diploma,  the  board 
may  grant  a  state  certificate  without  examination.  (Circular.) — 
Orvis  Ring,  State  Sup't. 

New  Hampshire. — "No  state  certificates  are  issued." — H.  L. 
Huntrep,  Clerk  for  Sup't. 

New  Jersey. — "  The  state  board  may  indorse  the  diploma  of 
another  state  when  the  requirements  for  such  certificates  are 
equivalent  to  those  required  in  this  state." — E.  Q.  Chapman, 
State  Sup't. 

New  York.  —  "The  state  superintendent  is  authorized  by 
statute  to  indorse  state  certificates  from  other  states." — A.  S. 
Draper,  State  Sup't. 


TEACHERS'  CERTIFICATES.  403 

North  Carolina. — "This  state  issues  no  life  diplomas.  All 
certificates  are  issued  upon  examination." — S.  M.  Finger,  State 
Sup't. 

North  Dakota. —  State  certificate  will  be  granted  only  upon 
examination.  (Circular.) — John  Ogden,  State  Sup't. 

Ohio. — "So  far  our  board  has  not  recognized  the  state  cer- 
tificates granted  in  other  states  as  authorizing  their  holders  to  a 
certificate  from  our  board  without  examination,  although  the 
taking  of  such  a  position  has  been  frequently  discussed  in  our 
board  meetings  favorably." — James  W.  Knott,  Clerk. 

Oregon. — "  We  recognize  state  papers  from  other  states  of  an 
equivalent  grade  with  those  issued  by  our  board  here." — E.  B. 
McElroy,  State  Sup't. 

Rhode  Island. — "We  have  at  present  no  system  of  state  cer- 
tificates."— Thos.  B.  Stockwell,  State  Commissioner. 

South  Carolina. — "  Certificates  from  other  states  are  not  rec- 
ognized in  this  state." — W.  D.  Mayfield,  State  Sup't. 

South  Dakota. — "  Our  school  laws  make  no  provision  for  rec- 
ognition of  certificates  issued  in  other  states." — Cortez  Salmon, 
State  Sup't. 

Texas. — "  We  have  no  law  by  which  we  can  recognize  exam- 
inations held  in  other  states." — J.  M.  Carlisle,  State  Sup't. 

Vermont. — "We  do  not  issue  either  term  certificates  or  life 
diplomas." — Edwin  F.  Palmer,  State  Sup't. 

Virginia. — "Diplomas  and  certificates  from  other  states  are 
not  recognized  in  Virginia. " — John  E.  Massey,  State  Sup't. 

Washington. — "Applicants  filing  a  certified  copy  of  a  state 
certificate,  the  requirements  to  obtain  which  shall  not  have  been 
less  than  those  required  in  Washington,  may  be  granted  cer- 
tificates or  diplomas.  (School  Laws,  page  10.)" — R.  B.  Bryan, 
State  Sup't. 

West  Virginia. — "Other  states  are  not  included  in  our  law, 


404  PUBLIC   SCHOOL   LAW. 

and  their  state  certificates  do  not  have  any  force  within  this 
state."— B.  S.  Morgan,  State  Sup't. 

Wisconsin. — Applicants  must  pass  successful  examination. 
(Pages  93  and  94,  School  Laws.)  — O.  E.  Wells,  State  Sup't. 

Wyoming. — "  Certificates  granted  in  other  states  are  not  valid 
in  Wyoming." — S.  T.  Farwell,  State  Sup't. 


INDEX. 


A. 

Abandonment — building 

Absence — rules 174, 

Acceptance — building 

Accident — pupils;  expelling 

Admission — pupil 171, 

Adoption — text-book 301- 

Aiding — religious  (see  Parochial) 
157- 
Alabama — 

Laws 

Tax 

Alteration,  district 54- 

Annual  meeting 

Apparatus — 

Officer 

Supplies 

Appeal 5- 

District  alteration...  57,  58,  63, 

District  organization 

Funds,  apportionment 

Location  site 

Pupil,  residence 

Superintendent 217- 

Superintendent,  county 

Superintendent,  state 6, 

Appendages 30-33, 

Apportionment,  funds 92- 

Mandamus 

Suit 

Superintendent,  state 94, 

Appropriation,  funds 98, 

Arbitration — 

District  alteration 

Suits 

Arizona — laws 

Arkansas  — 

Laws 

Tax 

Assault — pupil ;  punishment 

Asylum — 

Aiding 

Funds 95, 

Attorney — contract 


21 

175 

22 

198 
172 
312 

170 

331 

228 

80 

117 

146 

225 

10 

74 

86 

96 

200 

194 

219 

145 

214 

225 

98 

93 

93 

96 

99 

57 
209 
333 

334 

228 
177 

158 

112 

44 


B. 

PAGE 

Ballot— election 134,  135 

Bible,  text-book,  164,170,171,176,  198 

Bill  exchange — contracts 46 

Board  education — term 154 

Boarding  teacher 51 

Bond 10,  16,  92 

Builder's 18,  21 

Funds 100-  102 

Official,  liability 137-  143 

Surety 227,  228 

Books  (see  Text-books) 296 

Boundary — 

District 81,  87 

See  District  Alteration 54-  80 

Officers,  powers 145 

Building— 

Contract 16-  28 

Control  (see  Building,  use)  28-  30 

District  organization 82 

Election 91 

Repairs 30-  33 

Use 33-  36 


c. 

California — 

Laws 336 

Tax 229 

Certificate,  teacher's 262-  274 

Changes — building is 

Chart — supplies 225 

Chinese  pupil 173 

Classification  pupils 40 

Clerk- 
Liability 140 

Qualification 143 

Records 195,  196 

Vacancy 154 

Collector — qualification 147 

Colleges  —  universities 317-  321 

Colorado — 

Laws 337 

Tax 229 


(405) 


406 


PUBLIC   SCHOOL   LAW. 


Colored  school 36-    44 

Commissioner — 

Officer 136 

Qualification 146 

Term 153 

Committee  — 

Building 17,     22 

Qualification 147 

Compensation— teacher 274-  279 

Condemnation — 

Site 201 

Site,  meeting 124 

Connecticut — 

Laws 339 

Tax 230 

Constitution  — 

District  alteration 62 

Funds 100 

Statute 208 

Use  of  funds 157-  170 

Contract — 

Altering 227 

Attorney 44 

Building 16-    28 

District  alteration 61,     65 

Notes 45,     46 

Officers 143 

Officer  interested 46 

Officer,  liability 48 

Power 48-    50 

Ratification 51 

Site 201 

Suit 210 

Teacher 280-  289 

Time 132 

Conveyance — site 202 

Corporation 53 

District  alteration 77-    79 

Costs — officer's  liability 138 

County  superintendent — (  see  Ap- 
peal)   217,  218 

Crime  — 

Disturbing  school 54 

Indictment 133 

D. 

Damages — (see  Pupil;  Punish- 
ment.) 

Negligence,  building 33 

Debts  — 

District  alteration 62,  64,  65,     68 

73-75,  77-     80 

Delaware— laws 339 

Director — 

Qualification 149 

Vacancy 156 


Discharge  and  dismissal — 

Pupil 173-  175 

Teacher 289-  294 

Dissolution,  district 82 

District — (see  minor  sub-heads, 
as  Contracts,  Sites,  etc.) 

District  alteration 66,54-  80 

Appeal 74 

Boundary 71,  72 

Contracts 61 

Corporation 77 

Debts 64,  65 

Mandamus 71,  73 

Notice 62,  63 

Suit 70 

Title 61 

District  boundary 81 

District  dissolution 82 

District  library... .. 82 

District  organization 82-  88 

Appeal 86 

Boundary 87 

Defects 84,  85 

Evidence 85 

Quo  warranto 86 

Record 86 

Tax 84 

District  suits 209 

District  union 89,  90 

Disturbing  school  —  (see  Laws) ...  54 

E. 

Election — (see  Voters) 323 

Bond 10 

Building 91 

Notice 91,     92 

Officer 134-  136 

Site 203,   204 

Superintendent,  county 135 

Evidence — record 195,    196 

Execution — judgment 114-  116 

Exemption — tax  (see  Tax,  each 

state) 228-  262 

Exhibitions — building 34 

Expulsion,  pupil 173-  175 

F. 

Fees  —  (see  Officer,  compensation.) 

Fence 31 

Fence  —  supplies 225 

Fines — funds 101 

Florida— 

Laws 340 

Tax 230 

Free— text-book 269 


INDEX. 


407 


Funds — 

Apportionment. 92-    98 

Appropriation 98,  99,  113 

Bonds 100 

Constitution 100 

Control 144 

District  alteration 66 

Fines 101 

Interest 102 

Investing 102 

Judgment;  payment 99 

Liability 137 

Liquor 103 

Loan 103-108,  113 

Officer 109 

Sectarian  schools 157-  170 

Use 110-112,  128 

Funds,  use — constitution 100 

Orphans 95 


G. 

Georgia — 

Laws 341 

Tax 231 

German  text-book 299 

Grammar  school 113 

H. 

Hall  — building 17,  20,  21,     23 

High  school 113 

Holiday,  religious 200 

I. 

Idaho  laws 342 

Illinois  — 

Laws 343 

Tax 231 

Indiana — 

Laws 344 

Tax 233 

Indictment — officer 139 

Industrial  schools — aiding..  159-  170 

Injunction — 

Building 29 

Site 204 

Inspector — election 136 

Institute— teacher 295 

Interest — 

Contracts 46 

Funds 102 

Iowa — 

Laws 345 

Tax 233 


J. 

Janitor — contract 49 

Joint  high  school 113 

Judgment — 

Execution 114-  116 

Funds 99 

Mandamus 115,  116 

Justice  peace 209 

K. 

Kansas  — 

Laws 347 

Tax  235 

Kentucky  — 

Laws 349 

Tax  235 


Laws — 

Alabama 331 

Arizona 333 

Arkansas 334 

California 336 

Colorado 337 

Connecticut 339 

Delaware 339 

Florida 340 

Georgia 341 

Idaho 342 

Illinois 343 

Indiana 344 

Iowa 345 

Kansas 347 

Kentucky 349 

Louisiana. 350 

Maine 353 

Maryland 356 

Massachusetts 357 

Michigan 358 

Minnesota 359 

Mississippi 361 

Missouri 363 

Montana 364 

Nebraska 365 

Nevada 366 

New  Hampshire 367 

New  Jersey 368 

New  Mexico 370 

New  York 371 

North  Carolina 372 

North  Dakota «....  373 

Ohio 375 

Oregon 376 

Pennsylvania 380 

Khode  Island 381 


408 


PUBLIC   SCHOOL   LAW. 


Laws — 

South  Carolina 382 

South  Dakota 386 

Tennessee 388 

Texas 389 

Vermont 391 

Virginia 393 

Washington 394 

West  Virginia 396 

Wisconsin 397 

Wyoming 398 

Legislature — 

Apportionment 93 

District  organization 88 

Funds,  use 110 

Powers 53,  116 

Liability— 

Officers 48,  132,  137-  143 

Teacher 296 

Library,  district 82 

Lien,  mechanic's 116 

Liquor — 

Funds 103 

License 101 

Loan — funds 103-  108 

Location — see  Building ;  see  Site. 

Louisiana — 

Laws 350 

Tax  237 

M. 

Maine— 

Laws 353 

Tax  239 

Mandamus — 

Apportionment 93 

Colored  pupil 39,     41 

District  alteration 58,     73 

Funds 96,97,  112 

Judgment 116 

Officers 144 

Maryland — 

Laws 356 

Tax  237 

Massachusetts  — 

Laws 357 

Tax  237 

Mechanic's  lien 116 

Meeting — 

Annual 117 

Notice 118-  127 

Officers'  powers 145 

Records 195,  196 

Michigan  — 

Laws 358 

Tax 240 


Minnesota — 

Laws 359 

Tax  240 

Mississippi  — 

Laws 361 

Tax  240 

Missouri  — 

Laws 363 

Tax  241 

Moderator;  qualification 148 

Montana — laws 364 

Mortgage  —  see  Funds,  loan.. .103-  108 

Release 138 

Suit 212 


K 

Nebraska — 

Laws 365 

Tax  242 

Negligence  — 

Damages 33 

Officers,  liability 142,  143 

Negro — see  Colored  Schools. 

Nevada — laws 366 

New  Hampshire  — 

Laws 367 

Tax  243 

New  Jersey — 

Laws 368 

Tax  245 

New  Mexico  laws 370 

New  York  — 

Laws 371 

Tax  247 

Notes — see  Contracts ;  Warrants. 

Contracts 46,     49 

Officers,  liability 141 

Supplies 226 

Notice- 
District  alteration 66,67,     69 

Election 91,     92 

Meeting 118-  127 

Site 205 

Normal  school 127 

Building 18 

North  Carolina — 

Laws 372 

Tax  252 

North  Dakota  laws 373 


o. 

Oath,  officer — see  officer;   quali- 
fication   146-  149 

Oath— officer .  129 


INDEX. 


409 


Officer 128-156 

Bond,  official 149 

Commissioner 136 

Compensation... 129-  132 

Contract 132,    133 

Election 134-  136 

Funds 109 

Interested,  contract... 46-    48 

Intoxication 150 

Liability 32,  48,  132,  137-  143 

Liability,  negligence 142,    143 

Mandamus 134 

Oath 127 

Power 143-  146 

Pro  tern 129 

Qualification 146-  149 

Quo  warranto.. 150 

Kemoval 150,  215 

Secretary  state  board 134 

Site 205 

Suit 212 

Surety 226,  227 

Tax 151 

Term 151-  153 

Treasurer 154 

Vacancy 154-  156 

Women 328 

Ohio  — 

Laws 375 

Tax 252 

Orders  ( see  Warrants ) 324-  328 

Order — contracts 45 

Oregon — 

Laws 376 

Tax  253 

Organization,  district 82-    88 

Orphans — fund,  use 95 

Outbuildings 31 

P. 

Parochial  school 157-  170 

Party  — suit 209-  213 

Pennsylvania — 

Laws 380 

Tax  253 

Petition — district  alteration..  54-    80 

Piano  supplies 224 

Private  school — 

Aiding 157-  170 

Building 34-     36 

Funds Ill-  112 

Property— title <..  312 

Prudential  committee 146,  152 

Liability 139 

Suit 212,  213 

Vacancy 154 


Public  school  funds. 


Punishment,  pupil 

Pupil  — 

Admission 

Chinese 

Dismissal  and  expulsion,  7, 

Punishment 

Residence 

Textbook 

Tobacco,  use 

Tuition 

Purchasers,  bonds 


110-  112 
127,  128 
176-  191 

171,  172 

173 

173-  175 
176-  191 
192,  193 
299,  300 

199 

192-  194 
14,   15 


Q. 


Qualification,  officer 146-  149 

Quo  warranto — 

District  organization 83,     86 

Officer u.  150 

E. 

Railroad  — 

Bonds 13 

Funds,  loan 103 

Ratification 25-  27 

Building 20 

Contract 49,  51 

Recitals — bond 15 

Record — 

Amendment 197 

Evidence 195,  196 

District  organization 86 

Treasurer. 154 

Refunding  bonds 12 

Religion  (see  Bible,  Parochial, 
Text-books) — 

Aiding 157-  170 

Building 34,  35 

Holiday 200 

Meetings 34 

Removal,  officer.... 150 

Residence,  pupil 192,  193 

Rhode  Island— 

Laws 381 

Tax 254 

Rules  and  regulations...  197-199,  296 

Absence 174,  175 

Pupils 172-  175 


Salary — see  Officer,  compensation. 

Sale,  site 206 

Secret  society — colleges 172 

Sec'y  state  board — constitution...  134 

Sectarian— funds 100,  111,  112 

157,  170 


410 


PUBLIC  SCHOOL  LAW. 


Separate  schools — see  Colored. 

Settlement,  treasurer 154 

Site— 

Appeal 5-,  10 

Bonds 13 

Building 200-  208 

Condemnation 201 

Contract 201 

Conveyance 202 

Election 203,  204 

Injunction 204 

Lease 202 

Meeting 126 

Meeting,  notice 122 

Notice 205 

Officers 205 

Place 205 

Sale 206 

Tax 206 

Title 207 

Trust 208 

South  Carolina — 

Laws 382 

Tax  255 

South  Dakota  laws 386 

Statute — constitution 208 

Studies— 

Rules 197-  199 

Text-books 174-176,  299 

Suits 30,  209-  213 

Attorney 45 

District 209 

District  alteration 70 

Party 209-  213 

Sunday  school — building  ...     34,     35 

Surety 226,  227 

Funds;  loan 104 

Superintendent,  county 217,  218 

Appeal 6,  8-10,  145 

Compensation 130-  132 

District  alteration 57-    59 

Funds 97-    99 

Liability 141 

Term 152,  153 

Superintendent  schools 128,  130 

219-  223 
Qualification 147,  148 

Superintendent,  state 214-  216 

Appeal 5,     74 

Apportionment. 94 

Contract,  attorney 44 

Normal 128 

Power 130 

Supplies 224-  226 

Contract 48 

Warrants 324-  328 


T. 

Tardiness — rules 197 

(See  Punishment;  Rules  and 
Regulations.) 

Tax— 

Alabama 228 

Arkansas 228 

Building 17,  20,     24 

California 229 

Colorado 229 

Connecticut 230 

District  alteration 55 

District  organization 84 

District  union 90 

Exemption  (see  each  state). .260-  262 

Florida 230 

Funds;  use 112 

Georgia 231 

Illinois £31 

Indiana 233 

Iowa 23& 

Kansas 235 

Kentucky 235 

Louisiana 237 

Maine 23& 

Maryland 237 

Massachusetts 237 

Meeting 119,  123-125,  127 

Michigan 240 

Minnesota 240 

Mississippi 240 

Missouri 241 

Nebraska 242 

New  Hampshire 243 

New  Jersey 245 

New  York 247 

North  Carolina 252 

Officers 137,  151 

Ohio 252 

Oregon 253 

Pennsylvania 253 

Rhode  Island 254 

Site 206 

South  Carolina 255 

Tennessee 255 

Texas » 256 

Trespass 313,  314 

Utah 257 

Vermont 257 

Virginia 257 

Washington 259 

West  Virginia 260 

Wisconsin 260 

Tax-payer;  officer 148- 

Teacher — (see  Teacher,  compen- 
sation; Teacher,  contract). 


INDEX. 


411 


Teacher— 

Appeal 7 

Certificate 262-274,  400-  403 

Compensation...  274-279,  289-  294 

Contract 51-52,  280-  289 

Discharge 289-  294 

Institute 295 

Liability 296 

(See  Pupil,  punishment;  Rules 
and  Regulations.) 

Officer;  qualification 148 

Officer;  removal 150 

Tennessee  — 

Laws 388 

Tax  255 

Term — 

Officer 151-  153 

Time 296 

Texas — 

Laws 389 

Tax  256 

Text-book — 

Adoption 296,  297,  301-  312 

Appeal 7 

Change 297,  298 

Free 299 

German 299 

Officer 129 

Pupil 299,  300 

Rules 197 

Studies 174-176,  299 

Time— term 296 

Title  — 

District  alteration 61 

Property 312 

Site 203,  207 

Town — 

Corporation 313 

Site 313 

Treasurer — see  Officer,  liability...  313 

Bond 129 

Compensation 130,  132 

Liability 137-  141 

Officer 154 

Trespass 313 

Site 208 

Suit 203 

Truant — 

Officer. 151 

School 314-  316 

Trust 316,    317 

Trust—site 208 

Trustee— 
Liability 137,  141 


Trustee— 

Liability;  penalty 140 

Officers'  powers 146 

Term 152 

Vacancy 155 

Tuition— pupil 192-  194 

u. 

Union  district 89-    90 

Universities 317-  321 

University  — 

Nebraska 128 

Pupils 172 

Use- 
Building 33-    36 

Funds 110-  112 

Utah— tax 257 

Y. 

Vacancy — officer 154-  156 

Vaccination — constitution 323 

Vermont — 

Laws 391 

Tax  257 

Virginia- 
Laws  » 393 

Tax  257 

Void— 

Bonds 16 

Building  contract 25 

V0te — contract 50,     51 

Voters 293 

Voters— women 329 


w. 

Warrants — 

Building 25^ 

Supplies 225,  324-  328 

Washington — 

Laws 394 

Tax 259 

West  Virginia- 
Laws 396 

Tax 260 

Wisconsin — 

Laws 397 

Tax 260 

Women — 

Officers 328 

Voters 329 

Wyoming  laws 39& 


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